Articles from The Massachusetts Focus
Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Spring 2007, Volume 6, Number 2
Intestacy, Wills, and Tenancies
by Gary F. Casaly, Special Counsel
Death, they say, is the end. But that’s not really true. Regardless of the religious or philosophical views one may hold, death is a beginning — it is the springboard from which the devolution or transfer of title to real estate jumps. How high the jump is, and the direction in which the springboard takes the title, depends on a number of factors, all of which need to be understood if an accurate tracing of the chain of title is to be made.
This article will discuss how death directs title. This will include some wholly-misunderstood rules concerning intestate succession and (in an upcoming continuation of this article) a review of testamentary dispositions and tenancies and some surprising court decisions and legislative enactments regarding them. One might wonder how it would be possible to fill up an entire article with this subject — after all, it would seem that just a few rules regarding intestate succession would cover everything — but as we shall see things are much more complicated than that.
Spotting salient facts and understanding how the law is applied at any particular point in time is the first step in establishing questions of ownership to property upon death. In this regard, the law is always changing, so — because a title abstract is a “history” of a title back in time — it’s important to know what the law was and how it was applied to deaths that occurred during that historical window. For example, in Seavey v. O’Brien, 307 Mass. 33 (1940), a case that involved the devolution of property upon the death of a married, albeit childless, man the courts said, “[c]onfusion has crept into this case, partly because of a failure to distinguish clearly among the several classes of cases hereinbefore mentioned and among decisions with reference to them under statutes which have varied from time to time.” It is “confusion” of the application of the law that can lead to disaster when a title that is in fact good — or bad — is believed to be the exact opposite of what the law dictated at the time.
Just as lethal as confusion is a misunderstanding of the law. For example, some believe that a spouse’s “waiving” of a will results in the spouse receiving what he or she would have received if the testator had died intestate. This misunderstanding can lead to some serious repercussions, not to mention liability. I will attempt to dispose of some of the myths that swirl around probate and tenancy question in a future installment of this article, with the view of keeping everyone out of trouble.
I suppose a good place to start an article like this is with the subject of intestate succession. The basic statute on this subject is contained in G.L.c. 190, §§1-3. Section 1 tells us what the spouse inherits, if there is a spouse; section 2 addresses the question of personal property; and section 3 governs the descent of real property.
If there is a spouse, his or her inheritance is dealt with first by the statute. Section 1 states:
If the deceased leaves kindred and no issue, and it appears on determination by the probate court, as hereinafter provided, that the whole estate does not exceed two hundred thousand dollars in value, the surviving husband or wife shall take the whole thereof; otherwise such survivor shall take two hundred thousand dollars and one half of the remaining personal and one half of the remaining real property.
There are provisions in the statute for the sale of real estate to raise the $200,000, if necessary. There is also a provision for “notice” and a “hearing” for a determination of the valuation of the estate. And here lies the understanding of how the statute works. The fact that the decedent left no issue and that the estate is less than $200,000 does not result in the surviving spouse taking the entire estate. In order for the surviving spouse to take everything, there can be no issue and the court must enter a “decree” that the estate does not exceed the threshold amount. Counting up the values in the inventory is not enough; there has to be a court order, or “determination of value.” If the court determines that the value of the estate exceeds the threshold amount then the surviving spouse takes $200,000 in cash and a half interest in all the remaining real and personal property, with the remaining half interest devolving to other heirs according to the provisions of section 3, which will be discussed in detail in a bit.
An interesting effect in the application of this statute occurred in Green v. Gilmore, 331 Mass. 283 (1954). In Green, because the estate was valued and determined by decree to be less than $10,000 (the threshold amount at the time) the decedent’s widow was entitled to all of it. Under the will of a third person about $15,000 was, upon the widow’s husband’s death, to go to his heirs. The court held that the determination of value decree, that resulted in the widow taking all of her husband’s property, meant that she was his sole heir, and therefore entitled to all of the $15,000. Note that if the $15,000 had been included in the husband’s estate it would result in that estate exceeding the threshold amount, which in turn would have resulted in the widow sharing the estate, including the $15,000, with other next of kin. But since the $15,000 came from a third party and was for the benefit of the husband’s heirs, all other persons were excluded from sharing in the $15,000 gift.
There are two important “footnotes” to keep in mind with regard to the foregoing statute. The first “footnote” is found in Hite v. Hite, 301 Mass. 294 (1938). That case involved a nonresident decedent who had died in Ohio, but whose widow opened up an ancillary proceeding in Massachusetts and brought a petition for a determination of value, so as to take all the real and personal property in Massachusetts, which at the time did not exceed $5,000 in value. The court said that another statute, G.L.c. 199, §1 governed the estates of nonresident decedents, which provides that:
[A nonresident intestate’s property] shall decent according to the laws of this commonwealth, and his personal property shall be distributed and disposed of according to the laws of the state or country of which he was an inhabitant.
The court said, “the statutes governing the administration of the estate of a non-resident decedent do not provide different rules of inheritance depending upon the size of the estate,” but rather simply provide that the property shall “descend” or be “distributed and disposed of” in accordance with the law of Massachusetts, in the case of real property, or as provided for in the domiciliary state of the decedent, in the case of personal property. Because G.L.c. 199, §1 includes the distribution of personal property, which is governed by the law of the foreign state, it’s impossible to apply the determination of value rule because that property that constitutes part of the estate is not subject to jurisdiction of the Massachusetts courts. Regarding this, Belknap, Newhall’s Settlement of Estates and Fiduciary Law in Massachusetts, Lawyers Cooperative Publishing Company (Fifth Edition, 1994), §8.1 states:
The result of these rules is that if a nonresident decedent leaves a surviving spouse but no issue, such survivor does not get $200,000 out of the real estate as provided under G.L.c. 190, §1. [Footnote omitted.] The only right of inheritance of such surviving spouse in Massachusetts real estate is that given by G.L.c. 199, §1, and this is a half interest (or the whole if there was neither issue nor kindred surviving without the $200,000).
The other “footnote” is to the fact that the statute is very much like, but still different from, that which governs the waiver of a will, G.L.c. 191, §15, with which sometimes it is confused. That statute provides that upon a timely waiver of the will the spouse will take one third of the deceased’s property where there are issue, but if there were no issue but only kindred the spouse will take $25,000 and half of the remainder of the property; except that in either case if the total amount received exceeds $25,000 the spouse will take that amount of cash and have a life estate in the share of the estate to which he or she is entitled.
This is the statute that was referred to briefly at the beginning of this article. Note its similarity, at least in phraseology, to G.L.c. 190, §1. The $25,000 figure has remained unchanged since 1964, and the low figure gives a surprising result: upon waiving the will in a “normal-sized” estate the surviving spouse would take $25,000 and a life estate (income or possession) in the remaining estate.
Of course, if there are issue then the spouse under the present law takes a half interest outright, and the issue take the other half. Previously, the “equation” used to be one-third for the spouse and two-thirds for the issue. Remember, however, that prior to 1902 the spouse took nothing by intestacy — the title went entirely to the issue or the next of kin. It’s unlikely — although it happens occasionally — that a title will be traced all the way back to the beginning of the twentieth century, but the point here is that the “rules change” when it comes to intestacy or the interpretation of wills due to statutory amendments, and it’s important to be mindful that these changes exist. For, to apply the law of “today” to the facts in a title of “yesterday,” can cause a multitude of problems.
So much for the rights of the surviving spouse. The “core” provisions concerning inheritance as to real property are contained in G.L.c. 190, §3. This section provides for the distribution of property after taking into account the rights of the spouse, if any. What’s left over, after any spouse’s share is distributed, is what this section addresses.
For the most part, §3 is straight forward. If a person dies intestate his property, subject to the aforementioned rights of the spouse, is distributed as follows:
- If he leaves children, they take equally, and in the event that one or more of the children have predeceased the decedent, they take by “right of representation.”
- If there is no surviving child, then title goes to “all his other lineal descendents,” with the caveat that if all such lineal descendents are “in the same degree of kindred,” they take equally; otherwise they take “according to the right of representation.”
- If there are no issue, then title goes to the decedent’s father and mother, or the survivor of them.
- If there is no issue and no surviving father or mother, then title goes to the decedent’s brothers and sisters, and to the issue of any deceased brother or sister by right of representation, and if there is no surviving brother or sister, then title goes “to all the issue of [the decedent’s] deceased’s brothers and sisters,” again with the proviso that “if all such issue are in the same degree of kindred to the intestate, they shall share the estate equally, otherwise according to the right of representation.”
The above paragraphs spell out intestate succession as far as the statute brings it. Note that, except with respect to the situation where the decedent leaves only a father or mother, all other distributions provided for under the statute make provisions for a “right of representation” in the event that a member, but not all of the members of a class (i.e., children) have predeceased the decedent. Except for the paragraph at the end of the statute that deals with the “escheat” of title, there is one additional paragraph to the statute that must be observed. It states:
If [the decedent] leaves no issue, and no father, mother, brother, sister, and no issue of any deceased brother or sister, the [title shall go] to his next of kin in equal degree; but if there are two or more collateral kindred in equal degree claiming through different ancestors, those claiming through the nearest ancestor shall be preferred to those claiming through an ancestor more remote.
This last paragraph, though its application would be unlikely — most decedents have some issue, a father or mother, a brother or sister or a few nieces and nephews or grand-nieces or nephews running around — is drafted in an interesting manner. Note that after we’ve run out of brothers and sisters, and their issue, the concept of representation is no longer mentioned in the statute, nor is it the basis for distribution of property. At this point in the devolution of property, the concept of next of kin controls without regard to “representation” under deceased kindred. All that is necessary at this point is to calculate next of kin of the same degree and, if some of the kindred are of the same degree but claim under “an ancestor more remote,” eliminate them.
This would be an opportune time to comment on some of the terms that are mentioned in, and to which the statutes apply: terms such as “heirs,” “next of kin,” “kindred,” and distributions “per capita” and “by right of representation” or “per stirpes” should be understood in order to correctly determine how the statutes work. The term “heirs” refers to those who succeed to the decedent’s title upon intestacy. The term “kindred” simply refers to persons who are related to the intestate, while “next of kin” are the persons in that group that are the closest such relatives, as computed according to the civil law, and who would take under the deceased when the group of “normal” heirs has been exhausted. A spouse is an heir (or more accurately, a “statutory heir”) of the decedent, but is not included in the term “next of kin.” As to those who do inherit (heirs) they will take equally as a group (per capita) where they are all in the same degree in relation to the decedent. For example, where William dies intestate survived by his three children, Richard, Gary and John, those children will all share equally — per capita, or “per head.” (If William had a wife, her interest would first be disposed of.) If Gary has predeceased William and left two children of his own (grandchildren of William) then those two grandchildren would take (share) what Gary would have taken had Gary survived, and it said that they take “by right of representation,” or per stirpes, which means by “root” or “stock.” In this regard, you can see that different generations can simultaneously share in the decedent’s bounty. This “representation,” or as I call it sometimes, “substitution” rule applies where the class of persons involved are either the children or the siblings of the deceased, and one or more (but not all) of the members of the class have died before the decedent. After that, representation disappears altogether and the “next of kin” take on equal footing, to the extent that they are of the same degree to the deceased, with the statutory rule, as noted above, that “those claiming through the nearest ancestor shall be preferred to those claiming through an ancestor more remote.” The concept of “representation” or “substitution” no longer exists. But what does this language in the statute concerning next of kin mean, and how does this whole arrangement work?
Refer to the Degrees of Kindred chart. There you see a depiction of the degrees of kindred. (The next time you’re at a party listening about “second cousins,” or “”first cousins twice removed” you’ll know what’s being discussed!) The letter “D” stands for the deceased. Relatives who are connected to the deceased directly by a line running from the deceased to them (i.e., Child, Parent(s) and Sibling), and person claiming through these persons, are in the category of people to whom the rule of “representation” or “substitution” applies. For example, subject to the spouses distribution, if “D” dies with a child, the child will take all; if the child predeceased “D,” the persons claiming under the Child (e.g., the Grandchild) would “represent” the Child and take in lieu of the Child. Similarly, again subject to the spouse’s distribution, if “D” had no living children or parents, but did have brother or sister, that Sibling would take all; if the Sibling predeceased “D,” the persons claiming under the Sibling (e.g., the Nephew or Niece) would “represent” the Sibling and take in lieu of the Sibling. And this “representation” or “substitution” could filter down in each case to subsequent generations claiming under the same line depending upon the existence or failure of members in each generation.
But that’s it on representation. After we run out of Children, or issue generally, Father and Mother and Siblings, and persons claiming under the latter, we simply look at the chart and we (i) determine who are closest of kin (i.e. which kin are in the column at the top with the lowest number) and (ii) discard all such kin except for those claiming under the nearest ancestor.
Let’s take an example. Suppose “D” dies with no issue, no father or mother and no brothers or sisters or persons claiming under these siblings. However, “D” leaves behind a First Cousin and a Great Aunt. You’ll note that both of these persons are in Column 4, and therefore are of the same degree of kin to “D.” However, since the Cousin claims under “D’s” “nearest ancestor” (Grandparent, as opposed to Great Grandparent), the Cousin will take all. In the event that the Cousin had predeceased “D,” leaving the First Cousin Once Removed, this latter party would take nothing, because “representation” no longer applies; in such a case the Great Aunt would take all because she would be in the column with the lower number (4), while the First Cousin Once Removed would be in Column 5. If there are multiple persons in the same degree of kindred claiming under the nearest ancestor (i.e., if there were two brothers, both cousins to the deceased) they would share the inheritance.
That’s basically it on testate succession. I’ll continue this article in a future edition of the newsletter and cover wills and tenancies.
1 In 1938 the threshold amount was $5,000. [Back to text]
2 The spouse does have other rights — dower, rights to allowances and, where one was declared, rights under a homestead — but we’ll pass over those rights for now. [Back to text]
3 The distribution of personal property is governed by G.L.c. 190, §2. [Back to text]
4 See G.L.c. 190, §4. [Back to text]
5 See the discussion in Seavey v. O’Brien, 307 Mass. 33 (1940). [Back to text]
6 If all of the members of the class are dead, then we simply “drop down” to the next generation with survivors in it, and apply the same rule. [Back to text]