Massachusetts funeral rights

Massachusetts Surviving Spouse Rights — Elective Share, Allowances, and the Deadline to Claim Them (2026)

By Oleg Kachko · Updated September 6, 2026

✓ Verified September 2026

Massachusetts Surviving Spouse Rights exist because a will cannot cut a husband or wife out entirely. Every state protects a widow or widower with a share they may claim regardless of what the will says, plus allowances that come off the top before creditors and other heirs.

This guide gives the Massachusetts answer in plain English: what the elective share is, the deadline to claim it, whether trusts and joint accounts count, the homestead, exempt-property and family allowances, what happens when the marriage came after the will, and what forfeits the rights. All facts are from Massachusetts law, verified as of September 2026.

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Massachusetts Surviving Spouse Rights: At a Glance

Here are the Massachusetts facts that decide most Massachusetts surviving spouse rights claims:

Elective share Massachusetts has no percentage-of-augmented-estate elective share; instead G.L. c. 191, § 15 lets a surviving spouse “waive the will” and claim a statutory forced share. If the decedent left issue, the spouse takes one-third of the personal property and one-third of the real property. If the decedent left kindred but no issue, the spouse takes 25000 plus one-half of the remaining personal and one-half of the remaining real property. If neither issue nor kindred survive, the spouse takes 25000 plus one-half of the remaining personal and real property.
Deadline to elect The waiver must be a writing signed by the surviving spouse and filed in the registry of probate within 6 months after the will is allowed (probated), not 6 months from the date of death, under G.L. c. 191, § 15. The 6-month period is otherwise strict and cannot be extended for convenience. If legal proceedings are pending in which the validity or effect of the will is drawn in question, the Probate and Family Court may extend the filing time to 6 months after those proceedings terminate.
Counts non-probate assets (augmented estate) NO. Massachusetts did not adopt UPC Part 2 of Article II, so there is no statutory augmented estate sweeping in joint accounts, life insurance, retirement beneficiary designations, or lifetime gifts. The share under G.L. c. 191, § 15 is measured against the probate estate. By case law, Sullivan v. Burkin, 390 Mass. 864 (1984), assets of an inter vivos trust created during the marriage by the decedent over which the decedent held a general power of appointment are added to the § 15 estate, but only for trusts created or amended after January 23, 1984.
Community property state NO. Massachusetts is a common-law (separate property) state, not a community property state. A surviving spouse has no automatic one-half interest in property acquired during the marriage. Protection comes instead from the G.L. c. 191, § 15 waiver-of-will share, the intestate share under G.L. c. 190B, § 2-102, and the allowances in G.L. c. 190B, §§ 2-403 and 2-404.
Homestead allowance There is no probate homestead allowance — G.L. c. 190B, § 2-402 is expressly “Reserved” in Massachusetts, so a spouse cannot claim a cash homestead allowance from the estate. Massachusetts instead uses a creditor-protection homestead in the residence under G.L. c. 188: an automatic exemption of 125000 in equity under § 4, or 500000 under § 3 if a declaration is recorded. Under G.L. c. 188, § 7 that homestead continues after death for the benefit of a surviving spouse who occupies the home, even if they remarry.
Exempt property Under G.L. c. 190B, § 2-403 the surviving spouse may claim from the estate household furniture, automobiles, furnishings, appliances, and personal effects with a date-of-death value up to 10000 in excess of any security interests. If there is no surviving spouse, the decedent’s children share the same 10000. If assets of that type are insufficient, the shortfall may be made up from other estate assets. This right is in addition to any share passing by will, intestacy, or the § 15 waiver.
Family allowance Under G.L. c. 190B, § 2-404 the surviving spouse and minor or dependent children the decedent supported may receive a reasonable allowance in money for maintenance during administration. A personal representative may allow up to 1500 per month for 1 year without court approval; a larger or longer allowance requires a Probate and Family Court order under § 2-405. If the estate is inadequate to pay allowed claims, the allowance may not run longer than 1 year. It is payable to the surviving spouse if living.
Court / filing The Massachusetts Probate and Family Court Department, filed at the Registry of Probate for the county where the decedent was domiciled at death, or where the decedent’s property was located if the decedent was not domiciled in Massachusetts. — It is called a waiver of the will, or waiver of the provisions of the will by the surviving spouse, filed under G.L. c. 191, § 15. Practitioners also refer to it as the spousal election or claim of the statutory forced share. It is a writing signed by the surviving spouse and entered in the registry of probate; Massachusetts does not publish a single dedicated numbered MPC form for it.

Why the Will Cannot Disinherit a Spouse in Massachusetts

The law treats marriage as an economic partnership. A spouse who spent decades contributing to a household is not left to the mercy of a will written in anger, under pressure, or decades ago. In separate-property states the protection is the elective share: a fixed fraction of the estate the surviving spouse may take instead of whatever the will provides.

In community property states it is built in — half of everything acquired during the marriage already belongs to the survivor and never passes under the will at all. Massachusetts uses one of those two systems, and the table above says which.

The right is personal to the spouse and must be claimed. Nothing happens automatically: a surviving spouse who does nothing takes what the will gives, even if that is nothing. The election has a deadline, it is filed in the probate court, and it is the single Massachusetts surviving spouse rights fact that a grieving spouse most often learns too late.

The Massachusetts Elective Share

Massachusetts has no percentage-of-augmented-estate elective share; instead G.L. c. 191, § 15 lets a surviving spouse “waive the will” and claim a statutory forced share. If the decedent left issue, the spouse takes one-third of the personal property and one-third of the real property. If the decedent left kindred but no issue, the spouse takes 25000 plus one-half of the remaining personal and one-half of the remaining real property.

If neither issue nor kindred survive, the spouse takes 25000 plus one-half of the remaining personal and real property.

The deadline: The waiver must be a writing signed by the surviving spouse and filed in the registry of probate within 6 months after the will is allowed (probated), not 6 months from the date of death, under G.L. c. 191, § 15. The 6-month period is otherwise strict and cannot be extended for convenience.

If legal proceedings are pending in which the validity or effect of the will is drawn in question, the Probate and Family Court may extend the filing time to 6 months after those proceedings terminate.

What counts: NO. Massachusetts did not adopt UPC Part 2 of Article II, so there is no statutory augmented estate sweeping in joint accounts, life insurance, retirement beneficiary designations, or lifetime gifts. The share under G.L. c. 191, § 15 is measured against the probate estate. By case law, Sullivan v. Burkin, 390 Mass.

864 (1984), assets of an inter vivos trust created during the marriage by the decedent over which the decedent held a general power of appointment are added to the § 15 estate, but only for trusts created or amended after January 23, 1984.

Community property: NO. Massachusetts is a common-law (separate property) state, not a community property state. A surviving spouse has no automatic one-half interest in property acquired during the marriage. Protection comes instead from the G.L. c. 191, § 15 waiver-of-will share, the intestate share under G.L. c. 190B, § 2-102, and the allowances in G.L. c. 190B, §§ 2-403 and 2-404.

Allowances the Spouse Gets on Top of the Will

Homestead: There is no probate homestead allowance — G.L. c. 190B, § 2-402 is expressly “Reserved” in Massachusetts, so a spouse cannot claim a cash homestead allowance from the estate. Massachusetts instead uses a creditor-protection homestead in the residence under G.L. c. 188: an automatic exemption of 125000 in equity under § 4, or 500000 under § 3 if a declaration is recorded. Under G.L. c.

188, § 7 that homestead continues after death for the benefit of a surviving spouse who occupies the home, even if they remarry.

Exempt property: Under G.L. c. 190B, § 2-403 the surviving spouse may claim from the estate household furniture, automobiles, furnishings, appliances, and personal effects with a date-of-death value up to 10000 in excess of any security interests. If there is no surviving spouse, the decedent’s children share the same 10000. If assets of that type are insufficient, the shortfall may be made up from other estate assets.

This right is in addition to any share passing by will, intestacy, or the § 15 waiver.

Family allowance: Under G.L. c. 190B, § 2-404 the surviving spouse and minor or dependent children the decedent supported may receive a reasonable allowance in money for maintenance during administration. A personal representative may allow up to 1500 per month for 1 year without court approval; a larger or longer allowance requires a Probate and Family Court order under § 2-405.

If the estate is inadequate to pay allowed claims, the allowance may not run longer than 1 year. It is payable to the surviving spouse if living.

Married After the Will Was Signed

Under G.L. c. 190B, § 2-301, a spouse who married the testator after the will was signed and is not provided for takes at least the intestate share they would have received, but only out of the portion of the estate not devised to the testator’s pre-marriage child who is not the spouse’s child, or to that child’s descendants.

There is no claim if the will was made in contemplation of the marriage, states it survives a later marriage, or the testator provided for the spouse outside the will with intent it be in lieu of a devise.

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Waiver and Disqualification in Massachusetts

Spousal rights may be waived by an antenuptial (prenuptial) settlement, given statutory effect by G.L. c. 209, § 25, which requires a written agreement. Massachusetts courts apply the two-look test of DeMatteo v. DeMatteo, 436 Mass. 18 (2002): the agreement must be fair and reasonable when signed, with full and fair disclosure of assets, and not unconscionable when enforced. Postnuptial agreements face heightened scrutiny under Ansin v. Craven-Ansin, 457 Mass.

283 (2010), including rigorous disclosure and a meaningful opportunity for independent counsel.

What forfeits the rights: A person divorced from the decedent is not a surviving spouse under G.L. c. 190B, § 2-802 unless remarried to the decedent at death; a decree of separation that does not terminate the marriage does not by itself disqualify. Under G.L. c.

209, § 36, once the Probate and Family Court enters a judgment that a person deserted their spouse or that the spouse lives apart for justifiable cause, the deserting spouse cannot waive the will under c. 191, § 15 or claim an intestate share. A spouse who feloniously and intentionally kills the decedent forfeits under G.L. c. 190B, § 2-803. A pending, unfinished divorce alone does not disqualify.

If there is no will: With no will, G.L. c. 190B, § 2-102 gives the surviving spouse the entire intestate estate if no descendant or parent survives or if all descendants are also the spouse’s and the spouse has no other descendants, the first 200000 plus three-fourths of the balance if a parent but no descendant survives, and the first 100000 plus one-half of the balance in blended-family situations.

The Massachusetts dying-without-a-will guide linked below covers that in full.

Other Massachusetts rules: There is no sliding scale by length of marriage. The largest Massachusetts-specific trap is the life estate cap in G.L. c.

191, § 15: when the spouse’s share exceeds 25000 in value, the spouse receives only 25000 outright and takes the excess as income for life — a life estate in the real property and income from personal property held in trust — with the principal passing to the will’s beneficiaries. Sullivan v. Burkin adds certain revocable inter vivos trust assets, while Bongaards v. Millen, 440 Mass.

10 (2003), declined to extend that to trusts the decedent did not create. Legislation to replace §§ 15 and 16 with a UPC-style augmented-estate elective share (House Docket 3425, H.1944, filed January 17, 2025) remains pending and is not law.

Mistakes That Cost a Surviving Spouse in Massachusetts

The first mistake is waiting. The election to take the statutory share has a deadline that runs from death or from the will’s admission, and the probate court cannot extend it for a spouse who did not know. The second is assuming the will is the whole picture.

A spouse who was left “the house” may be entitled to considerably more under the Massachusetts surviving spouse rights rules — and may also be entitled to allowances the will never mentions.

The third mistake is signing something in the first weeks. A release, a family settlement, or a disclaimer offered by another heir can waive rights the spouse did not know they had. The last is overlooking a prenuptial agreement.

If one exists, it may have waived the elective share — but only if it met the state’s requirements for disclosure and fairness at the time, which is a question a lawyer should answer before anyone relies on it.

What to Expect When You Claim Massachusetts Surviving Spouse Rights

Claiming Massachusetts surviving spouse rights is a filing inside the probate case, not a separate lawsuit. The surviving spouse files the election and any allowance requests with the court, the personal representative calculates the estate the share is measured against, and the court resolves any dispute over what counts.

Where the will already gives the spouse more than the statutory share, the election is unnecessary and most spouses do not file one.

Two things surprise people. The first is how much depends on the calendar — the election deadline is short in some states and runs whether or not the spouse knew. The second is that the allowances are separate from the share and are paid first, ahead of creditors, which is often what keeps a surviving spouse in the home during the months the estate takes to settle.

You don’t have to do this alone

If you are settling a loved one’s estate in Massachusetts, your state’s probate court self-help center and free legal-aid offices can walk you through the process at no cost. For an active probate or a deadline, talk to a licensed probate attorney in your state.

Key Takeaways: Massachusetts Surviving Spouse Rights

  • The will cannot disinherit you: Massachusetts surviving spouse rights guarantee a share the spouse may claim no matter what the will says.
  • You must elect: Massachusetts surviving spouse rights are not automatic; the statutory share is claimed by a filing in the probate court.
  • The deadline is short: the election that secures Massachusetts surviving spouse rights runs from death or the will’s admission and cannot be extended for not knowing.
  • Allowances come first: the homestead, exempt-property, and family allowances under Massachusetts surviving spouse rights are paid before creditors and heirs.
  • Trusts may count: in augmented-estate states, Massachusetts surviving spouse rights reach assets placed in trusts and joint accounts, not only probate property.
  • Community property is different: where it applies, half is already the survivor’s, and Massachusetts surviving spouse rights are about the other half.
  • A late marriage changes the will: a spouse married after the will was signed usually takes an intestate share under Massachusetts surviving spouse rights.
  • Prenups can waive: Massachusetts surviving spouse rights can be given up in a prenuptial or postnuptial agreement, but only one that met the state’s disclosure rules.
  • Separation can forfeit: a pending divorce or abandonment can end Massachusetts surviving spouse rights in some states before the death.
  • Sign nothing early: a release or disclaimer offered by another heir can waive Massachusetts surviving spouse rights the spouse never knew about.
  • Compare before you elect: Massachusetts surviving spouse rights are worth claiming only when the statutory share exceeds what the will gives.
  • The intestate share is separate: when there is no will, Massachusetts surviving spouse rights are set by the intestacy rules on the companion guide.

Quick Answers: Massachusetts Surviving Spouse Rights

What are Massachusetts Surviving Spouse Rights if the will leaves the spouse nothing?

A statutory share — commonly a third to a half of the estate — plus allowances paid ahead of creditors. Massachusetts Surviving Spouse Rights exist precisely for this case, but they must be claimed by a filing.

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Official Massachusetts Sources & Resources

This Massachusetts guide was last verified against official sources in September 2026. Laws change — verify with your state court or a licensed attorney.

More Massachusetts Estate Guides

Disclaimer: This guide is informational only and is not legal or tax advice. Estate, probate, and tax laws change and vary by state and county. Verify current rules and dollar figures with your state’s court, statute, or a licensed attorney or tax professional before acting. For urgent matters like an active probate or a tax deadline, consult a licensed professional in your state right away.

Estate planning? Make sure your life insurance is in order — see Life Insure Guide. Worried about Medicaid estate recovery? See Medicare Cover Guide. Divorced recently? Update your will and beneficiaries — see Divorce Help Guide.