01.30.09
Intestate Succession
Most estate planners would agree that most married couples want to leave their entire estate to each other. Yet the Massachusetts rule has been to give the surviving spouse only 1/2 for those who don’t bother to make a Will.
The new Massachusetts Uniform Probate Code will give the spouse the entire estate if all of their children are of that marriage. The spouse would get $100,000 and 1/2 of the rest if the spouse has children who are not children of the decedent. Likewise, if the decedent left children who are not children of the surviving spouse. The spouse would get $200,000 and 3/4 of the remainder if the decedent left a parent, but no children. [2-102] The children of the decedent take the rest of the estate, and if there are no descendants, parents take. [2-103]
Note that the term “issue” is no longer used as it has a biological connotation. The term descendants is used to make clear the status of adopted children. An adopted child is the child of the adopting parents and not the natural parents, except when the spouse of a natural parent adopts which will have no effect on the right of the child to inherit from either natural parent. [2-114]
The new Code should more nearly reflect the expectations of most people if they had gone to the trouble to declare their intent by making an estate plan and it adjusts to accommodate blended families which are so much more common today.