The Massachusetts Uniform Probate Code (“MUPC”) became effective in March of 2012. The MUPC modernized the probate code and estate administration in Massachusetts. Under the MUPC, marriage does not revoke a prior will. If there is a marriage after the will is executed, the surviving spouse is entitled to take their intestate share. The spouse’s intestate share is the entire estate less the share of children who are not children of the surviving spouse and were born before the testator married the surviving spouse. The rationale behind this rule is clear: 1) the surviving spouse should receive a portion of the estate as most married couples intend that their spouse receive the benefit of their separately held property, while balanced against 2) the interests of pre-born children who are not born of this marriage. Imagine the following scenario:
Tim Testator and Sally Survivor are married in 2012. Tim executed a will in 2010, a year before he met Sally. Tim has three adult children from a prior marriage in 1982. Tim dies in 2013. Sally submits Tim’s will to the probate court. Even though Sally isn’t named in the will, she is entitled to one half (1/2) of Tim’s estate. His three adult children are entitled to the other half, in equal one third (1/3) shares. Sally is protected against extreme divesture and Tim’s children is protected against a subsequent spouse taking the entire estate and making no provision for them in the future.
Let’s change the facts slightly. If the three children are also children of Sally, regardless of whether they are born before the date of their marriage, Sally will take the entire estate—her intestate share.
What if the Client wants his spouse to take the entire estate. The terms a will supersede the laws of intestacy. The Client should execute a new will. If the Client wishes for his children or other devisees to take regardless of a subsequent marriage, language to the effect of “This will shall be effective notwithstanding any subsequent marriage.” As with most other estate planning matters. This is highly fact dependent and careful consideration should be given during the consultation.
Stiles Law, with offices located in Boston and Marshfield, Massachusetts, offers estate planning services including wills, trusts, powers of attorney, guardianship nominations, and more. Stiles Law serves all areas of eastern Massachusetts–the North Shore, Boston, and Cape Cod, in addition to the entire South Shore, including: Plymouth, Kingston, Duxbury, Hanover, Pembroke, Marshfield, Scituate, Norwell, Cohasset, Hull, Hingham, Weymouth, Braintree, Milton, Quincy, Dorchester, Charlestown, Brookline, Dedham, Canton, Rockland, and everywhere in between..
Copyright © 2018 Stiles Law, All rights reserved. Stiles Law is a Massachusetts licensed law firm and all content is based on Massachusetts law. The information presented above is meant to be used for general informational purposes and it should not be construed as legal advice or legal opinion on any specific facts.