Intestate Succession in Massachusetts
What happens if you die without a will? Learn about intestacy in Massachusetts.
Intestate Succession in Massachusetts
If you die without a will in Massachusetts, your assets will go to your closest relatives under state “intestate succession” laws. Here are some details about how intestate succession works in Massachusetts.
Which Assets Pass by Intestate Succession
Only assets that would have passed through your will are affected by intestate succession laws. Usually, that includes only assets that you own alone, in your own name.
Many valuable assets don’t go through your will, and aren’t affected by intestate succession laws. Here are some examples:
- property you’ve transferred to a living trust
- life insurance proceeds
- funds in an IRA, 401(k), or other retirement account
- securities held in a transfer-on-death account
- payable-on-death bank accounts, or
- property you own with someone else in joint tenancy or tenancy by the entirety.
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.
Who Gets What in Massachusetts?
Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here’s a quick overview:
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The Spouse’s Share in Massachusetts
In Massachusetts, if you are married and you die without a will, what your spouse gets depends on whether or not you have living parents, descendants, or other relatives. If you don’t, then your spouse inherits all of your intestate property. If you do, they and your spouse will share your intestate property as follows:
If you die with parents or other relatives, but no descendants. Your surviving spouse inherits the first $200,000 of your intestate property, plus 1/2 of the balance. The rest of your property goes to your parents or other relatives in the order established by Massachusetts law.
Example: Gerry is married to Joe, and her father is still alive. Gerry owns a house in joint tenancy with Joe, and Joe is also the named beneficiary of Gerry’s retirement account. When Gerry dies, Joe automatically inherits the house and any remaining retirement funds; those things are not intestate property. Gerry also owns $250,000 worth of property that would have passed under a will if she had made one. Joe inherits $225,000 worth of that property -- that is, $200,000 plus 1/2 of the $50,000 balance. The remaining $25,000 worth of Gerry’s intestate property goes to Gerry’s father.
If you die with children or other descendants. Your spouse inherits 1/2 of your intestate property, and your descendants inherit the other 1/2.
Example: Bill is married to Karen, and they have two grown children. Bill and Karen own a large bank account in joint tenancy, and Bill took out a life insurance policy naming Karen as the beneficiary. When Bill dies, Karen receives the life insurance policy proceeds and inherits the bank account outright. Bill also owns $300,000 worth of other property that would have passed under a will. Karen inherits $150,000 worth of that property and the two children split the remaining $150,000.
Children’s Shares in Massachusetts
If you die without a will in Massachusetts, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have and whether or not you are married. (See the table above.)
For children to inherit from you under the laws of intestacy, the state of Massachusetts must consider them your children, legally. For many families, this is not a confusing issue. But it’s not always clear. Here are some things to keep in mind.
- Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do.
- Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
- Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that won’t affect their intestate inheritance.
- Posthumous children. Children conceived by you but not born before your death will receive a share.
- Children born outside of marriage. If you were not married to your children’s mother when she gave birth to them, they will receive a share of your estate if you acknowledged your paternity or if your paternity was otherwise established under Massachusetts law.
- Grandchildren. Your grandchildren will receive a share only if their parent (your child) has died before you do.
This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney.
Will the State Get Your Property?
If you die without a will and don’t have any family, your property will “escheat” into the state’s coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, neices, nephews, or cousins. (See Massachusetts General Laws, Chapter 190B §§ 2-102 and 2-103.) If a veteran without heirs dies while a member of a Massachusetts Soldiers' Home, the property will go to the legacy fund for that home. (See Massachusetts General Laws, Chapter 190B §§ 2-105.)
Other Massachusetts Intestate Succession Rules
Here are a few other things to know about Massachusetts’s intestacy laws.
- Half-relatives. “Half” relatives inherit as if they were “whole.” That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common.
- Posthumous relatives. Relatives conceived before -- but born after -- you die inherit as if they had been born while you were alive.
- Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States.
To learn more about intestate succession, read How an Estate Is Settled When There is No Will.
You can find Massachusetts’s intestate succession laws in the Massachusetts General Laws, Chapter 190B, Article II. If you want to read the law, you can search the Massachusetts General Laws from the website of the Massachusetts Legislature.
For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.
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