A preliminary issue is whether there is a valid and enforceable prenuptial agreement or separation agreement impacting the inheritance rights of the surviving spouse.
The balance of this Q&A assumes there is no such valid and enforceable prenuptial or separation agreement.
The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012.
In the absence of a Will, § 2-102 of the MUPC provides that the surviving spouse is entitled to the entire estate in two circumstances. The first circumstance is where there are no stepchildren or descendants of stepchildren, i.e., all the descendants of the decedent are also descendants of the surviving spouse and all the descendants of the surviving spouse are also descendants of the decedent. The second circumstance is where the decedent had no descendant or parent that survived him or her.
Under § 2-102 of the MUPC, if (1) there is no Will, (2) there are either stepchildren or descendants of stepchildren and (3) the decedent had one or more descendant, the spouse is entitled to the first $100,000 and half the balance (and the decedent’s descendants receive the other half).
Moreover, under § 2-102 of the MUPC, if (1) there is no Will, (2) there are either stepchildren or descendants of stepchildren,(3) the decedent had no descendant and (4) the decedent was survived by a parent, the surviving spouse is entitled to the first $200,000 and three-quarters of the balance (and the decedent’s surviving parent receives the other quarter).
There is also the “family allowance.” Under § 2-404(a) of the MUPC, the personal representative (person in charge of the estate) has the authority to pay a “family allowance” to the surviving spouse and “minor children whom the decedent was obligated to support and children who were in fact being supported by the decedent.” Unless the court orders otherwise, the personal representative’s discretionary authority to pay a family allowance is capped at a lump sum of $18,000 or $1,500 per month for a period of one year. M.G.L. c. 190B, § 2-405.
There is furthermore the “exempt property” statute. Under § 2-403(a) of the MUPC, the surviving spouse, or children if there is no surviving spouse, is entitled to $10,000 of exempt property from the decedent’s probate estate. The $10,000 first comes from “household furniture, automobiles, furnishings, appliances and personal effects.”
Finally, under § 2-403(b) of the MUPC, the surviving spouse has the right to remain rent-free in the decedent’s house for six months after the decedent’s death.
Rather than let the law determine what you are entitled to upon your spouse’s death and what your spouse is entitled to upon your death, you both should have an estate plan setting forth your wishes as to who gets what at the death of the first-to-die spouse and at the death of the surviving spouse and naming a personal representative, a successor personal representative (backup person) and/or give your named personal representative the power to nominate a successor of his or her choosing.
Nothing in this Q&A should be considered legal advice as this is a complicated area of the law.