Spousal Elective Share Requirements in Massachusetts

At a glance

Requirements one by one

Governing law and system

Massachusetts uses a will-waiver statute rather than an augmented-estate formula. General Laws c. 191, § 15 lets the surviving spouse file a signed writing “waiving any provisions” made for the spouse in the will or claiming the statutory portion. The statute then divides the decedent's real and personal property according to the relatives who survived.

Eligible spouse and who may elect

The writing must be signed by the surviving spouse. Section 15 does not state a representative-election route. It also incorporates a narrow disqualification: under c. 209, § 36, a prior probate-court judgment that one spouse was deserted or was living apart for justifiable cause prevents the other spouse from later using § 15 against that person's will.

Share amount and marriage length

Massachusetts does not scale the share by marriage duration. It uses three family-status categories:

• If the decedent left issue, the starting share is one-third of the personal property and one-third of the real property.
• If the decedent left kindred but no issue, the starting share is $25,000 plus one-half of the remaining personal and real property.
• If the decedent left neither issue nor kindred, the spouse takes $25,000 plus one-half of the remaining personal and real property absolutely.

For the first two categories, the statute changes the form of a share worth more than $25,000. The spouse receives $25,000 outright and “only the income during his or her life” from the excess; personal property is held in trust and real property is vested in the spouse for life.

Estate base and nonprobate transfers

Section 15 speaks in terms of the real and personal property of the deceased in the will-waiver proceeding. It does not contain an augmented-estate list pulling in revocable trusts, beneficiary-designated accounts, survivorship property, the survivor's own property, or recent gifts. Whether a particular asset is part of the decedent's estate therefore cannot be answered from its title or beneficiary form alone.

Deadline, extensions, and withdrawal

The ordinary deadline is six months after probate of the will, not six months after death. The extension is narrow. If a legal proceeding puts the will's validity or effect in question, the probate court may act on a petition filed within the original six months and extend the deadline until six months after that proceeding ends. Section 15 states no general good-cause extension and no post-filing withdrawal procedure.

Filing, service, and court procedure

The statute requires a writing signed by the spouse and filed in the registry of probate. It does not state that the writing must be verified, notarized, or served in a particular way. The extension route does require a petition and whatever notice the probate court orders.

Waiver and agreement requirements

The post-death election itself waives the will provisions made for the spouse. Section 15 does not provide a separate checklist for a predeath waiver of the statutory right. General Laws c. 209, § 25 separately permits prospective spouses to make a written contract before marriage designating how specified real or personal property and rights of action will be held after marriage.

Payment sources and recipient liability

When only $25,000 is taken outright, § 15 directs payment first from the personal property in which the spouse is interested. If that property is insufficient, an interested person may petition for the deficiency to be raised through a sale or mortgage of the relevant real property. Section 16 lets the probate court appoint one or more trustees to hold personal property that produces the spouse's lifetime income.

Effect of election and other spousal rights

Section 15 permits a signed filing that waives the will's provisions or claims the statutory portion. In the issue and kindred-only categories, the resulting right does not necessarily mean outright ownership of the whole fraction: the excess over $25,000 supplies lifetime income, with the underlying personal property held in trust and the real property vested for life. Section 15 does not say that other statutory spousal benefits are added to or credited against this share.

What trips people up

• The $25,000 figure is not always the spouse's entire benefit. In the issue and kindred-only categories, it is the amount taken outright; the excess can still support lifetime income.
• The clock starts at probate of the will. Using the death date can produce the wrong deadline.
• Living apart is not automatically disqualifying. The exception in c. 209, § 36 depends on a probate-court judgment of desertion or justified separate living.
• The extension is tied to will litigation. Section 15 does not create a general extension whenever a late filing would be unfair.

Common questions

Does this statute apply if no will is probated?

Section 15 is expressly a waiver of provisions in a probated will. It does not govern the separate intestate-succession calculation when there is no will to waive.

Are revocable trusts and beneficiary-designated accounts automatically added?

Section 15 does not list those nonprobate categories. Asset ownership and whether property belongs to the decedent's estate require a separate analysis.

Who manages personal property that supports the lifetime income?

Under § 16, the probate court may appoint one or more trustees to hold that personal property during the spouse's life.

Statutes and sources

• G.L. c. 191, § 15 — will waiver, share categories, $25,000 outright and lifetime-income structure, payment sources, deadline, and limited extension. “Within six months after the probate of the will,” the spouse may file a signed writing in the registry of probate. Official General Court text (accessed 2026-08-02).
• G.L. c. 191, § 16 — court appointment of trustees for personal property producing lifetime income. Official General Court text (accessed 2026-08-02).
• G.L. c. 209, § 36 — prior desertion or justified-separation judgment that bars the other spouse's § 15 claim. Official General Court text (accessed 2026-08-02).
• G.L. c. 209, § 25 — written antenuptial property contracts and their marriage-time effect. Official General Court text (accessed 2026-08-02).