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Massachusetts Agencies

Waiver of Will

Probate

A grieving widow approaches you and tells you that her deceased husband effectively cut her out of his will. Seems that she was his second wife and he felt compelled to leave nearly all of his property to the children of his first marriage. Her husband died with a rather large estate—about $1,500,000—and she wants you to represent her in getting her just due. When he died he left the widow and some children scattered around the countryside, but in his will he left the widow only $150,000, and the rest of the property to his offspring.

The solution to the widow's quandary seems simple: waive the will. Right? Not so fast! The decision to waive the will depends upon what results that action will succeed in accomplishing. It is generally believed by conveyancers as a whole that waiving the deceased partner's will results in the surviving spouse succeeding to the same amount of property that he or she would have succeeded to had the deceased spouse died intestate. If the conception were correct then waiving the will would be the obvious avenue that the widow should pursue because she would thereupon succeed to one half of the deceased partner's estate, or in this case $750,000, which would be over half a million more than she would have taken under the will. But the conception is wrong! Before advice can be given regarding the waiver of the deceased spouse's will it is necessary that the provisions of G.L.c. 191, §15—the statute that governs the rules in such a case—be fully understood.

The provisions of G.L.c. 191, §15 have been amended a number of times. Today, the statute, in pertinent part, reads as follows:

The surviving husband or wife of a deceased person . . . within six months after the probate of the will of such deceased, may . . . [waive] any provisions that may have been made in it for him or her . . . and if the deceased left issue, he or she shall thereupon take one third of the personal and one third of the real property; and if the deceased left kindred but no issue, he or she shall take twenty-five thousand dollars and one half of the remaining personal and one half of the remaining real property; except that in either case if he or she would thus take real and personal property in an amount exceeding twenty-five thousand dollars in value, he or she shall receive, in addition to that amount, only the income during his or her life of the excess of his or her share of such estate above that amount, the personal property to be held in trust and the real property vested in him or her for life, from the death of the deceased.

A close reading of the above statute clearly indicates that the surviving spouse does not take an intestacy share. The notion that the statute provides that the surviving spouse waiving the will takes what he or she would have taken if the deceased died intestate is a left-over view of the enactment before its amendments. Although it is true that prior to 1957 the surviving spouse (subject to certain limitations) was entitled upon waiving the will to take what he or she would have taken had the deceased spouse died intestate, that belief fails to take into account the various amendments to the statute. The statute was substantially revamped in 1957 and, due to the fact that it has not been amended to keep pace with the intestacy statute (except once in 1964), the effect has resulted in a significant disparity in the distribution of an estate in the case of intestacy and in the case of the waiver of the will. First, because there are children in this case, the amount the surviving spouse would be entitled to take if the will is waived is capped at one-third, while under the situation of intestacy he or she would presently share in one-half of the estate. (If there were no children, but only next of kin along with the spouse, the spouse would be entitled to $25,000 plus one-half of the remainder of the estate, while under the intestacy laws in such a case the spouse would be entitled to $200,000 plus one-half of such remainder.) Second, in the case of intestacy the interest acquired is an absolute one, while in the case of the waiver of a will the distribution is partially outright and partially in the form of a life interest. The following tables will help to identify the differences: 

Spouse's Share Where There are Issues

IntestacyWaiver of the Will
One Half of the EstateOne Third of the Estate
Absolute Interest Acquired$25,000 Outright and Life Interest in Remainder

Spouse's Share Where There Are No Issues But Next Of Kin

IntestacyWaiver of the Will
$200,000 Plus Half of Remaining Real and Personal PropertyHalf of the Estate
Absolute Interest Acquired$25,000 Outright and Life Interest in Remainder

Let's take a few examples which will highlight the different results in the case of intestacy and in the case of the waiver of the will of the deceased spouse:

  • Mr. Smith draws a will in which he leaves all his property to his children and nothing to his wife. He dies and his estate is worth $600,000. If Mrs. Smith does nothing she will not share in her husband's estate, because he left her nothing in his will. She decides to waive the will. If Mr. Smith had died intestate Mrs. Smith would have inherited one-half of his estate, or $300,000. By waiving the will she is initially entitled to one-third of the estate, or $200,000, but since this amount exceeds $25,000 she will end up with the $25,000 outright and a life estate only in $175,000 (the balance of the $200,000) of her deceased husband's estate. It behooves Mrs. Smith to waive the will.
  • Mr. Jones draws a will in which he leaves his widow $150,000 and the rest of his property to his children. He dies and his estate is worth $1,500,000. If Mrs. Jones sits back and does nothing she will keep the $150,000 and will get nothing more. If she waives her deceased husband's will she takes $25,000 outright and will be entitled to a life estate in and the income produced by $475,000 of the assets of his estate. Whether such rights to possession of, and the income derived from, such property, coupled with the $25,000 in cash, is more beneficial to Mrs. Jones than the $150,000 she would take under the will is a question for the actuaries and requires a full examination of the situation. The "quick fix" solution of waiving the will may not in fact give the desired result in this case.
  • Mr. Jones draws a will and leaves nothing to his spouse. He dies without issue but with kindred and his estate is valued at $500,000. Had Mr. Jones died intestate Mrs. Jones would have received $200,000 plus half of the remainder of the estate, namely an additional $150,000, or a total of $350,000. If she waives the will she'll receive $25,000 outright and will be entitled to a life estate only in the remaining half of the estate, or $237,500.