Life Rights of a Surviving Spouse in Massachusetts
- A surviving spouse can elect and claim part of his spouse's estate if the deceased made provisions in her will. This applies only if the deceased died while residing in Massachusetts. If the deceased was not living in Massachusetts at death, the surviving spouse’s rights are determined by the law in the state the deceased was residing in at death.
- A spouse is entitled to renounce the election of an entire estate or part of it. This can apply to any piece of property and can be executed before or after marriage. The relinquishment can be implemented by one or both spouses. To give up the right to elect an estate, a spouse is required to do it in writing. A person has the right to claim her spouse’s property after death even if he did not want her to.
- A surviving spouse has to be alive when an election takes place. This means that an election cannot be sold, transferred or assigned unless a surviving spouse waives his right to elect. If a surviving spouse has a guardian or conservator, he is allowed to elect through that person; this has to be approved by a court, which has the right to oversee the allocation of a deceased assets.
- If a surviving spouse is incapacitated, the election can be carried out on his behalf. The elective amount has to be put in a custodial trust. In this case, an agent, conservator or guardian is allowed to carry out the election on behalf of the surviving spouse. The agent, conservator or guardian is chosen by the deceased spouse as custodial trustee. A written transfer is made by the deceased spouse when he or she is alive to allow a custodial trustee to act on behalf of the incapacitated surviving spouse upon his or her death.