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 pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:

• property you've transferred to a living trust
• life insurance proceeds with a named beneficiary
• funds in an IRA, 401(k), or other retirement account with a named beneficiary
• securities held in a transfer-on-death account
• real estate for which you have a transfer on death deed
• vehicles for which you have a transfer on death registration
• 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. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.

To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in Massachusetts.

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:

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 or descendants – children, grandchildren, or great grandchildren. 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 2/3 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 $500,000 worth of property that would have passed under a will if she had made one. Joe inherits $400,000 worth of that property -- that is, $200,000 plus 2/3 of the $300,000 balance. The remaining $100,000 worth of Gerry's intestate property goes to Gerry's father.

If you die with children or other descendants from you and the surviving spouse, and your surviving spouse has no descendants from previous relationships. Your surviving spouse inherits everything.

If you die with children or other descendants from you and the surviving spouse, and your surviving spouse has descendants from previous relationships. Your surviving spouse inherits $100,000 of your intestate property plus 1/2 of the balance.

Example: Bill is married to Karen, and they have two grown children. Karen also has a son from a previous marriage. 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 $400,000 worth of other property that would have passed under a will, so Karen inherits $250,000 worth of that property -- that is, $100,000 plus 1/2 of the $300,000 balance. The remaining $150,000 goes to Bill's and Karen's two children.

If you die with descendants who are not the descendants of your surviving spouse. Your spouse inherits $100,000 of your intestate property plus 1/2 of the balance.

Example: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $200,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright and $150,000 worth of Barrett's property. Barrett's daughter inherits the remaining $50,000 share of Barrett's property.

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, whether or not you are married, whether your children are also the children of your spouse, and whether your spouse has any children from a previous relationship. (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. Mass. Gen. Laws Ann. § 2-114.
• 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. Mass. Gen. Laws Ann. § 2-114.
• Posthumous children. Children conceived by you but not born before your death will receive a share as long as they survive for 120 hours. Mass. Gen. Laws Ann. § 2-108.
• 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. Mass. Gen. Laws Ann. § 2-114.
• Grandchildren. A grandchild will receive a share only if that grandchild's parent (your son or daughter) is not alive to receive his or her share. Mass. Gen. Laws Ann. § 2-106.

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, nieces, 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. Mass. Gen. Laws Ann. § 2-107.
• Posthumous relatives. Relatives conceived before -- but born after -- you die inherit as if they had been born while you were alive as long as they survive for at least 120 hours. Mass. Gen. Laws Ann. § 2-108.
• 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. Mass. Gen. Laws Ann. § 2-111.
• Advancements. If you gave a relative a gift during your lifetime, the value of that gift is subtracted from the relative's share only if you stated this in writing at the time of making the gift or the relative admits this in writing. Mass. Gen. Laws Ann. § 2-109.

Learn More

To learn more about intestate succession, read How an Estate Is Settled If There's 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.