Most people believe that they can write a Will and choose how their assets will be distributed at their death. This is generally true, however with one notable exception: you cannot disinherit your spouse.  In Massachusetts, M.G.L. Ch. 191, Sec. 15 allows a disinherited spouse to choose the so-called “elective share” if he or she decides it is preferable to what they would get from the terms of the Will.  This law has not been revised for decades and is out of step with a spouse’s rights under divorce law. This month, the Massachusetts Supreme Judicial Court ruled on M.G.L. Ch. 191 Sec. 15, offering some clarity in what this law means.

In Ciani v. MacGrath, the Court found that Susan Ciani, wife of the late Raymond Ciani, was entitled to his property – despite the fact that Raymond made no provisions for Susan in his Will.  Raymond’s Will left his estate to his four children from a prior marriage.   Susan challenged the Will, invoking her spousal rights detailed in M.G.L. Ch. 191, Sec. 15.  In particular, Susan sought a forced-sale on three properties Raymond owned.  This case turned not on whether Susan had a right to a share in the properties, but rather to the breadth of her share granted by the statute.

The statute says that the surviving spouse is entitled to $25,000 plus “only the income during his or her life,” of one-third of the estate in excess of $25,000 with “the personal property to be held in trust and the real property vested in him or her for life.”  Raymond’s children argued that Susan’s statutory right only gave her an interest in one-third of the income produced from the real estate, and thus, not having an ownership interest, she could not force a sale.  Susan, however, argued that she had a life estate in an undivided one-third of each property.

The discrepancy forced the Supreme Judicial Court to analyze the archaic law more closely, in considering the intent of the Legislature.  The court focused on the language “vested in him or her for life.”  The word vested, they ruled, shows the Legislature’s intent for the surviving spouse to have an ownership interest, not merely an interest in the income produced by the real property.  The Court also concludes that “in him or her for life,” connotes a life estate.  With this, the Court ruled Susan can petition to partition the properties and therefore force sales.  Once sold, Susan’s right to profits would be determined by actuarial tables, which are based on age, life expectancy and current interest rates.  Had both sides not agreed to sell, Susan would have been allowed to live in the properties for the rest of her life.

The Court urged the Legislature to consider revising the law describing it as “unwieldy,” “perplexing to apply,” “gendered” and “woefully inadequate” in light of “modern notions of marital property.”  This archaic statute is yet another example of why clients must review their estate plans.  This can be especially important for second marriages with children of a prior marriage.  As our families and lives evolve and become more complex, it is important your planning reflects to make sure that your particular needs and wishes.

If you have questions about how this topic may affect you, please feel free to contact our Estate Planning group for assistance at 617-951-3100.