Can I Disinherit My Spouse in Massachusetts?

Can I Disinherit My Spouse in Massachusetts?

This is a question we get asked ALL the time.

If you’re separated from your spouse but never went through with a divorce, you’re not alone. We see it constantly. The marriage is over in everything but paperwork, and maybe you’ve even built an entirely new life. But here’s the part most people don’t realize: if you don’t update your estate plan (or worse, don’t have one at all), your estranged spouse could inherit a massive portion of your estate.

That’s because of something called the elective share, a Massachusetts law that gives your spouse the right to claim a piece of your estate, even if your Will says otherwise. But things are even worse if you die without a Will. That’s when the state’s plan takes over - called the intestacy rules - and they’re even more generous to the spouse that you wanted to entirely disinherit.

Let’s walk through how this all works and why doing nothing is the most dangerous choice you can make.

What Happens If You Die Without a Will?

Here’s where this gets serious. If you die without a Will - what the law calls intestate - the default rules in Massachusetts automatically give your spouse a large portion of your estate. And in many cases, it’s more than they’d be entitled to if you had planned ahead and created a Will.

Depending on the circumstances, the spouse could receive:

• All of your estate (if your children are also their children)
• $100,000 plus half the remainder (if you have kids from a prior relationship)
• $200,000 plus 3/4 of the rest (if you have no kids but you have living parents)

That means: if you’re separated but never updated your estate plan, your estranged spouse could get more by default than they would if you had planned and left them out entirely.

Real Example: Dying Without a Will

Let’s say your estate is worth $600,000. You’ve been separated from your spouse for years, and your goal is to leave everything to your kids.

But you never got around to creating a Will. So, under Massachusetts intestacy law, here’s what happens:

• If all of your children are with your spouse, then your spouse inherits everything!! Even if you haven’t lived together for years!
• If you you have kids from a prior relationship:
• Your spouse receives $100,000 off the top, plus half the remaining $500,000 ($250,000)
• Total to spouse: $350,000 outright
• Your kids split only $250,000

Result:

• Spouse gets $350,000 in cash and full control
• Children receive $250,000 total

What Is the Elective Share?

Now let’s say you did take the time to create a Will. You left everything to your children and nothing to your estranged spouse.

In Massachusetts, your spouse can reject your Will and file for what’s called the elective share. But here’s the key difference: the amount they get is significantly less, and they have limited control over the assets.

The elective share allows your spouse to claim a portion of the estate, regardless of what your Will says. But it’s far less than what they’d get under intestacy.

The spouse must file for the elective share within six months after the Will is probated. If they miss the deadline, they lose the right to claim it.

What Does the Spouse Get Under the Elective Share?

Here’s what the surviving spouse is entitled to under Massachusetts General Laws, Chapter 191, Section 15:

1. If you have children (from any relationship):
• The spouse can claim one-third of your personal property and one-third of your real estate.
• But they only receive $25,000 outright. The rest is held in trust or given to them as a life estate—meaning they can use it or receive income from it during their life, but they don’t own it and can’t sell it.
2. If you have no children, but do have other relatives (like siblings or parents):
• The spouse gets $25,000 outright and half the rest of the personal property and real estate—but only as a life estate.
3. If you have no children and no other relatives:
• The spouse receives $25,000 outright plus half of the remaining estate outright.

What Does a “Life Estate” Mean?

A life estate means the spouse has the right to use the property or receive income from it during their lifetime, but doesn’t actually own it.

For example:

• If the property is a house, the spouse can live there but can’t sell it.
• If it’s investment accounts, they can receive dividends or interest, but can’t cash out the principal.

When the spouse dies, the property goes to whoever you named in your Will (or under intestacy rules if you had no Will).

Real Example: You Create a Will, and Spouse Claims the Elective Share

Let’s go back to that same $600,000 estate.

You create a Will that leaves everything to your children. Your spouse isn’t happy about that and files for their elective share.

You have children from a prior relationship. That means your spouse can claim:

• One-third of the personal property ($100,000)
• One-third of the real estate ($100,000)
• But they only receive $25,000 outright
• The remaining $75,000 is in trust or a life estate

Result:

• Spouse gets $25,000 outright (a far cry from the $350,000 in the example if you have no estate plan!!)
• Children eventually receive the full $575,000 (minus the life estate delay) 

     Side-by-Side Comparison

Why a Trust Provides Even More Protection

While a Will is a huge improvement over doing nothing, a trust can offer even greater protection, especially if you want to avoid probate, control the timing of distributions, and potentially shield your assets from the elective share altogether.

Trust benefits include:

• Assets in certain types of trusts may not be subject to the elective share
• You can set detailed instructions for how and when your children receive funds
• Your plan stays private, unlike a Will, which becomes public record
• You avoid probate, saving time, money, and headaches

At Monteforte Law, we use trusts strategically, especially for clients with complicated family dynamics, like blended families or estranged spouses. A trust gives you options and control that a Will can’t.

What You Should Do Next

If you’re separated and don’t want your spouse to inherit everything, doing nothing is the worst decision you can make. You can’t completely disinherit a spouse in Massachusetts, but you can:

• Limit what they receive
• Control how and when they receive it
• Protect the bulk of your estate for your children

You don’t have to be divorced to take action, you just have to stop procrastinating.

Want to learn more?

Here are three easy ways to take the next step:

1. Attend one of our FREE estate planning seminars or webinars

You’ll learn exactly how Massachusetts law works and how to protect your assets and your loved ones. Go to www.MLawSeminars.com to sign up.

2. Download our free guide – “The Procrastinator’s Guide to Estate Planning”

It’s packed with no-nonsense explanations and tips for getting your plan started.

3. Sign up for a Strategic Planning Session with one of our attorneys, by going to www.BookMyPlanningSession.com

Don’t let the law decide who gets your life’s work. Take back control.