Pending Legislation to Increase the Amount a Disinherited Spouse Can Receive

BOSTON, MA, April 20, 2013 (Press-News.org) Recently, there has been much debate with respect to updating the "spousal elective share" statute in Massachusetts. This statute law allows a disinherited spouse to "elect against" their deceased spouse's Will and receive a mandatory share of the deceased spouse's estate, irrespective of the terms of the deceased spouse's will. Specifically, a disinherited spouse will receive a "life interest" in one-third of the deceased spouse's probate estate. If the deceased spouse left no offspring, the surviving spouse's share increases to one-half.

The proposal pending before the Massachusetts Legislature, would allow a surviving spouse to receive fifty percent of the value of the marital property portion of the augmented estate. The "augmented estate" includes significantly more assets than are considered under the current "spousal election" statute. The augmented estate includes the deceased spouse's probate estate, non-probate transfers, and non-probate transfers to the surviving spouse.

Further, the proposal includes language that the "marital property portion" is determined on a sliding-scale, which is determined by the length of the marriage. This is akin to the concept behind Massachusetts' new alimony statute; specifically, that marriage is an economic partnership and that the longer the duration of the marriage the more dependent a spouse is on that economic partnership. The outcome of this proposal becoming law in Massachusetts would be that the division of assets upon a spouse's death would more closely resemble the division of assets that would occur if the parties divorced.

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