Your new will

Updates to Massachusetts law
became effective March 31, 2012.

There has always been some confusion concerning what happens to the estate of a person if he or she dies without a will.  Contrary to the fears of some, if you die without a will, your property does not automatically pass to the state unless you die without heirs, in which case your property will pass to the state.  For individuals dying without a will but with living relatives, Massachusetts has always provided for the distribution of the estate to the person's living relatives.  The distribution of the estate, however, has changed over time and was most recently revised again with statutory changes that became effective on March 31, 2012.

In the past, most of the changes in the rules concerning the distribution of estates tended to favor a surviving spouse.  For example, prior to 1978, children received two-thirds of the estate and a widow received one third.  In 1978, the ratio was changed so that the children received only one-half of the estate and the widow received the other half.  The most recent change recognizes that family compositions have become significantly more complex over time and takes into account situations in which a married couple may have children together as well as having children by previous marriages.  Naturally, taking the various family compositions into account makes the rules significantly more complicated than they used to be.  Under the new rules if a married individual dies without a will, and the deceased person and spouse only have children together, the surviving spouse receives the entire estate.  However, if an individual dies without a will but with a surviving spouse, the surviving spouse receives only $100,000.00 plus one-half of the balance of the estate if the surviving spouse had children who are not children of the deceased or if the deceased had children who are not children of the surviving spouse.

Clearly, the revised rules reflect the tension that often develops between the expectations of a second spouse and the expectations of the children of a prior marriage.  When a couple only has children together, it is assumed that the surviving spouse will pass any remaining estate to the common children upon death, but might not be as likely to treat children of a deceased spouse's prior marriage in the same way that the surviving spouse would treat children of his or her own prior marriage.

Although the new legislation makes a reasonable effort to recognize the legitimate  interests of the children of prior marriages, it should be remembered that the rules for the distribution of the estates of deceased persons are rarely the controlling factor in modest estates. The rules only go into effect if the decedent did not have a will at the time of his death and only affects property that is not passed through joint ownership or by the designation of a beneficiary.   Since real estate and bank accounts frequently pass to a surviving spouse through joint ownership and other assets such as life insurance and retirement accounts often pass through the designation of a beneficiary, the statutory rules for the distribution of the property of a decedent rarely come into play in modest estates.

The legislature deserves credit for updating the laws concerning the descent and distribution of estates to reflect the realities of modern life, but reliance on the statutory provisions is rarely the best option and is a poor substitute for a properly executed will or a carefully considered and implemented estate plan.

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