A Recognition of Today’s Modern Family

By Ashley M. Green, Esq.

Understanding the New Massachusetts Uniform Probate Code

After almost 20 years of debate, new legislation has brought about significant changes to the probate process and procedure which will affect almost every family in the Commonwealth. Many of these new provisions concern intestacy laws, which are laws that govern who receives a decedent’s property in the event that they die without a will. Historically, if a decedent passed away, leaving a surviving spouse and two children of that marriage, the spouse would receive half of the decedent’s intestate property and the other half would pass directly to the children in equal shares. It was not uncommon for many married couples to opt out of the fallback provision and execute wills which left the surviving spouse with the entire estate in the event of death. In turn, the new Massachusetts Uniform Probate Code (“MUPC”) acknowledges this scenario by adopting a new intestacy law which calls for the surviving spouse to receive the decedent’s entire estate. Many other provisions were included in the MUPC to recognize the ever changing modern day family. This article will highlight some of the new provisions that went into effect on March 31, 2012.

Statistically speaking, today’s modern family is a new incarnation of the iconic nuclear family that appeared in every commercial and TV show from Campbell’s soup to Leave it to Beaver and Family Ties. In contrast to Ward Cleaver’s brood, today, only 20 percent of households consist of a married couple raising children. This figure is down from 43 percent in 1950. Due to this evident shift in the family structure, there has been a push in Massachusetts to reform the intestacy laws to account for divorce, second marriages, second families, adoption, and step-children.

Divorce still revokes any portion of a will which bequeaths the estate to a former spouse. However, under the new law, non-probate transfers such as the beneficial interest in life insurance policies and trusts are also automatically revoked by divorce. This new provision must be contemplated when drafting divorce documents, as due diligence is required to ensure that all provisions of the divorce agreement are imposed, regardless of whether the new MUPC permits otherwise.

Under the new MUPC, the new spouse takes a share of any part of the estate which is not devised to the decedent’s children born prior to the new marriage. If the deceased spouse does not have a child of a prior marriage or relationship, the surviving spouse’s share will encompass the entire estate. Including a stipulation in a will executed prior to a marriage that the will was created in contemplation of marriage can avoid this predicament.

The MUPC has been tailored, among other reasons, to acknowledge two ever-present issues that have emerged: many people are dying without a will (intestate) and many people have had more than one marriage, including children from each marriage, at the time of their death.

Value cannot be placed on the benefit of having a properly executed estate plan. Any assets properly transferred to a trust or left to beneficiaries through a properly executed will are not subject to the intestacy laws. It is important to note that the statute of limitations for bringing forth a probate proceeding has been significantly shortened from 50 years to 3 years. Therefore, once the 3 year statute of limitations has passed and no will has been produced, it is presumed that the decedent died intestate. For this reason, among others, it is imperative that individuals and families plan properly for the future of their estate.