Wills - Elective Share Statute

Question 1

What is the purpose of the elective share statute?

Answer 1

To protect surviving spouse against disinheritance by assuring that, upon election, he or she takes a minimum share of decedent’s estate.

Question 2

Under the Elective Share Statute, How much does a surviving spouse take if survived by issue (where of this marriage or earlier marriage)?

Answer 2

First $25,000 of personal property outright plus life estate in 1/3 of balance.

When life estate involves personal property, it is held in trust.

When life estate involves real property, a “legal” life state exists (i.e. not in a trust).

Question 3

Under the Elective Share Statute, How much does the surviving spouse take if decedent was survived by kindred, but not by issue?

Answer 3

First $25,000 of personal property outright, plus life estate in 1/2 of the balance.

Question 4

Under the Elective Share Statute, How much does the surviving spouse take if decedent was NOT survived by issue or other living relation? (RARE

Answer 4

First $25,000 of personal property, plus one-half o the balance outright.

Question 5

Are revocable disposition (i.e. revocable trust) included in the estate for elective share purposes?

Answer 5

Yes, otherwise a spouse could defeat policy and purpose of elective share protection by transferring the bulk of his or her property to a revocable trust.

Note: Life insurance is not a revocable disposition.

Question 6

When is the right of election available?

Answer 6

Only if decedent was Massachusetts domiciliary; elective share applies to personal property wherever located and to Massachusetts real property, but not really property in another state. (Situs rule).

Question 7

When must a spouse file an election?

Answer 7

6 months after will is admitted to probate. If not election, conclusively presumed that spouse elects to take under statute.

Question 8

Who may make the election?

Answer 8

Election can be made on behalf of an incapacitated spouse by a guardian or conservator WITH court approval.

Question 9

How does the estate satisfy the elective share?

Answer 9

Abatement Rules Apply:

First out of residuary estate, but properly devised outright to spouse by will is first applied. [Purpose: To avoid disruption of decedent’s testamentary plan as far as possible).

Question 10

When is a surviving spouse disqualified from the elective share?

Answer 10

(1) The surviving spouse deserted the decedent OR

(2) The couple has been living apart for justifiable cause.