Spousal Elective Share Massachusetts — What Surviving Spouses Can Claim

Massachusetts law makes it impossible to completely disinherit your spouse through a will. If a surviving spouse is dissatisfied with what a will provides — or if it provides nothing — they can reject the will entirely and claim a statutory share of the estate under M.G.L. c. 191, § 15.

This is the spousal elective share, and it overrides whatever the will says.

How the Elective Share Formula Works

The surviving spouse's elective share is not a simple percentage. It is calculated using a multi-tiered statutory matrix that depends on which other family members survive the deceased:

If the deceased leaves surviving children or grandchildren (issue): The surviving spouse receives the first $25,000 outright plus a vested life estate in one-third of the remaining personal and real estate.

If the deceased leaves no children but has surviving parents, siblings, or other blood relatives (kindred): The surviving spouse receives the first $25,000 outright plus a vested life estate in one-half of the remaining personal and real estate.

If the deceased leaves no children and no surviving blood relatives: The surviving spouse receives the first $25,000 outright plus one-half of the remaining personal and real estate in absolute ownership — not a life estate.

What "Vested Life Estate" Means in Practice

In the first two scenarios, the surviving spouse does not receive outright ownership of their share beyond the initial $25,000. Instead, they receive a life estate — the right to use and benefit from the property during their lifetime, with ownership ultimately passing to the deceased's other heirs.

The 2019 Supreme Judicial Court ruling in Cianci v. MacGrath established that a surviving spouse who claims a life estate under the elective share has a vested property interest. This means the spouse can petition the court to partition the real estate — potentially forcing a sale of the family home over the objections of the deceased's children.

For families with a primary residence as the main asset, this partition right creates serious conflict. The children who were supposed to inherit the home may be forced to sell it during the surviving spouse's lifetime, or the home's value may be tied up in litigation for years.

The Six-Month Deadline

A surviving spouse must file their elective share election with the Probate and Family Court within six months after the will is admitted to probate. Missing this deadline permanently waives the right. There are no extensions.

This means the spouse must evaluate the will's provisions, calculate whether the elective share would yield a better outcome, and file the election — all within a compressed timeframe that often coincides with the most acute period of grief.

Can You Disinherit a Spouse in Massachusetts?

No. Massachusetts public policy strictly prohibits complete spousal disinheritance. Even a prenuptial or postnuptial agreement waiving the elective share can be challenged if the waiver was not voluntary, was executed without full financial disclosure, or would leave the surviving spouse destitute.

However, the elective share can be reduced or managed through planning:

• Revocable trust with spousal provisions. If the trust provides adequately for the surviving spouse, there is less incentive to reject the will and elect the statutory share. Courts consider trust benefits when evaluating whether the overall estate plan is fair.
• QTIP trust. A Qualified Terminable Interest Property trust provides income to the surviving spouse for life while preserving the principal for the deceased's children. This satisfies the spirit of the elective share statute while keeping assets in the family bloodline.
• Life insurance. A substantial life insurance policy payable directly to the surviving spouse provides immediate cash outside the probate estate. While insurance proceeds are not technically part of the elective share calculation, they reduce the surviving spouse's financial motivation to elect.

The Omitted Spouse Trap

Under M.G.L. c. 190B, § 2-301, if you marry after executing your will and never update it, your new spouse is automatically entitled to receive their full intestate share of your estate — as if you died without a will. This can override specific bequests to children from a prior marriage.

The only exceptions: evidence that the omission was intentional, or proof that the spouse was provided for outside the will through other arrangements.

The takeaway: update your will immediately after marriage. Every month of delay creates a window where your new spouse could claim an unintended share of your estate.

Planning for Blended Families

The elective share creates the most tension in blended families. A second spouse can claim the elective share and receive a life estate in one-third of the estate — assets that the deceased may have intended for children from the first marriage.

Strategic trust planning can balance these competing interests. The Massachusetts Estate Planning Kit includes worksheets that help you map out how the elective share interacts with your specific family structure and asset profile, and identifies when professional legal guidance is warranted.

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