CALL FOR A CONSULTATION 413-525-3222 413-525-3222

Can’t Afford a Prenup? Under the New Probate Law an Existing Will May Be of Help, A New Will Even Better

© 2012 Attorney Douglas R. PetersonThe new Uniform Probate Code (which just went into effect March 31, 2012) changed the previous law in Massachusetts which provided that marriage automatically revoked a previously signed will unless done in contemplation of the marriage. First of all, a marriage no longer totally revokes a previously signed will. Secondly, to the extent that the will leaves your estate to children of a prior marriage or their descendants, your new spouse has only a very limited right at your death to those assets. To the extent that the will does not leave assets to those children or descendants, the will is deemed revoked as to those assets only and the surviving spouse is entitled to an intestate share in them equal to the first one hundred thousand dollars plus one half the remainder. There are other more complicated rules that apply if you have children with the new spouse or have no children at all.  The spouse still has the right to waive the will and take a forced statutory share, but where you have children or grandchildren from prior marriages, that amount is not only limited to one third of the estate, only $25,000 is outright, with a life interest in the remainder. This is pursuant to Chapter 191 of the General Laws which was not amended or repealed by the new law. Efforts to revise the forced statutory share law have been under consideration for years in the legislature, but so far have not come to fruition.You can protect your assets even further by executing a new will before the marriage which has appropriate savings language in it or after the marriage.  To the extent that such a will excludes the surviving spouse altogether, and no matter who the estate is left to, and whether or not you have children, the only rights the spouse will have are the limited rights under Chapter 191 to a forced statutory share. For more information see the article on this website entitled “The Massachusetts Uniform Probate Code (MUPC): A New Law Substantially Effecting Inheritance, Wills, Trusts, and Estate Administration”