Family Law Newsletter Fall 2012: The Impact of the New Massachusetts Uniform Probate Code on our Family Law Practice

Thursday, November 08, 2012

The Impact of the New Massachusetts Uniform Probate Code on our Family Law Practice.

 By Bradford N. Vezina and Theresa B. Ramos

The New Massachusetts Uniform Probate Code (“MUPC”) has brought sweeping changes to those practicing within the probate courts.  As courts and practitioners slowly become acclimated to the new law, it is important for family law practitioners to pause and consider the MUPC’s impact on the family law field and how family law practitioners should advise their clients moving forward.  Below is a brief discussion of some code provisions most likely to impact family law attorneys as well as a summary chart. 

A. Premarital Wills: 2-301

Prior to the adoption of the new probate code, marriage revoked any will executed prior to the marriage, with certain exceptions.  This harsh position on “premarital wills” often resulted in many estates passing through intestacy, contravening decedent’s expectations.  Current law adopts a more lenient approach—one that better tracks the presumed expectation of a testator.  

Under Section 2-301, marriage does not revoke a premarital will, rather the will remains intact and a surviving spouse is entitled to receive an automatic intestate share in an amount the surviving spouse would have been entitled to had the decedent died intestate (i.e., without a will).  Note that the distribution scheme under the intestacy laws has changed under the new code.    

Excluded from this spousal intestacy share is the value of any assets passing to a child of the testator born before the marriage and who is not also a child of the surviving spouse, among other exclusions.

This new law, however, also has some exceptions: a surviving spouse is not entitled to an intestacy share if (1) it appears from the will that it was made in “contemplation of marriage”; (2) the will states that it should remain effective despite a later marriage; or (3) the person provided for the surviving spouse in another manner outside the will and it’s shown that such a transfer was intended to be in lieu of any benefit under the will. 

  1. Divorce and Annulment: 2-804

Under current law, divorce does not revoke the entire will.  Instead, any “revocable” provision relating to a former spouse or a former spouse’s relatives is revoked.  For example, any bequest made to a former spouse or to his or her relatives will be revoked, as is the case with the creation of any powers of appointment or fiduciary nominations (e.g., personal representative, conservator, or health care agent).  The law simply glosses over the will—and other non-probate instruments—redacting any provision to the former spouse and relatives.  The drafter can avoid this result by expressly providing that the terms of the document shall not be effected by divorce or annulment.  As indicated, this section of the code applies to more than just wills; it also applies to non-probate documents (e.g., revocable trusts, payable on death accounts, retirement accounts and life insurance beneficiary designations).

Additionally, if the former spouses held property jointly as tenants by the entirety, then divorce would sever title, whereby the two would then hold interests as tenants in common. 

Once a provision, appointment, or nomination is revoked, we need to fill in the “holes.”  2-804 provides that any revoked bequest, appointment, other provision is treated as if the person disclaimed the revoked provisions (i.e., predeceased the author of the document).  Additionally, a former spouse or relative appointed or nominated in a fiduciary capacity is treated as dying immediately before the divorce or annulment. 

 C. Intestate Share: 2-102

When a person dies “intestate” or without a will, the surviving spouse is entitled to an intestate share.  The new probate code provides a greater share to the surviving spouse than previous law.  Currently, a spouse is entitled to a decedent’s entire probate estate if either (1) no descendant or parent survives the decedent; or (2) all of the decedent’s surviving descendants are also descendants of the spouse and the spouse does not have any other descendant from another marriage.  

Critical to the determination of a spouse’s intestacy share is listing the children of both the surviving spouse and the decedent and determining if there are any children from previous marriages.  Unlike the old law, the new probate code accounts for a society of “multiple marriages.”  As such, if a decedent or surviving spouse has children of another marriage, then the surviving spouse will receive only a portion of the estate.  Practitioners are urged to read the current law to assess the appropriate value of such a share in a multiple marriage situation.   

SUMMARY OF CHANGES IN THE OLD STATUTES vs. MUPC

Old
Statute

Provision

MUPC

Changes/Comments

191 § 9

Effect of marriage, divorce or annulment

2-301

  • A premarital will is not revoked by marriage; the surviving spouse get’s intestacy share
  • The spouse’s right to an intestacy share is automatic; it need not be elected
  • In calculating the spouse’s intestacy share value, the intestacy laws at date of death govern (see below)
  • This automatic share does not preclude the spouse from electing against the will

 

191 § 9

Effect of marriage, divorce or annulment

2-804

  • Revocation applies broadly to probate and non-probate documents that were “revocable” at the time of a divorce or annulment.
  • Any revocation is “revived” upon the remarriage of the former spouses.
  • Provisions revoked are treated as being disclaimed
  • Spouse is defined under 2-802

 

190 § 1

Surviving spouse’s intestate share

2-102

The intestate share of a decedent's surviving spouse is:

 

(1) the entire intestate estate if:

 

(i) no descendant or parent of the decedent survives the decedent; or

(ii) all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;

 

(2) the first 200,000, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;

 

(3) the first 100,000, plus one-half of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;

 

(4) the first 100,000, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving  descendants are not descendants of the surviving spouse.

 

 

For a full-text version of the MUPC please see:

http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/mupchub.html

 

 

Bradford Vezina concentrates his practice in estate administration and planning.

While at Suffolk University Law School, Brad was an intern at the Norfolk County Probate Court for the Honorable John. D. Casey.  He also worked with the Massachusetts Uniform Probate Code Implementation Committee to research issues relating to implementation of the new probate code. Brad often volunteers his time visiting the probate courts to assist litigants and court clerks in navigating Massachusetts’ new probate procedures.    

Prior to joining Prince Lobel, Brad worked at Rosenberg, Freedman, and Goldstein LLP, where he focused his practice on estate administration and planning, as well as elder and disability law.

Brad holds a J.D. from Suffolk University School of Law, where he graduated in the top 10% of his class, and a B.A. in Philosophy and English from Bridgewater State College.

 

Attorney Theresa Ramos joined RF&G in 2005. Theresa brings to the firm a wide array of unique legal experiences that have taken her from the halls of large firms to the intimacy of a solo practitioner office, to the judicial chamber as a clerk. Theresa served as a judicial law clerk for the Justices of the Massachusetts Probate and Family Court from 2001-2002. After her clerkship, Theresa focused her practice exclusively in family law. Prior to joining RF&G, Theresa was Of Counsel to Lisa A. Greenberg, and was an associate at the Boston firm Partridge, Anker, and Horstmann LLP. Theresa is also trained in collaborative law as well as mediation.

While her experiences in each of these various settings were rewarding, her practice at RF&G has been uniquely enhanced by the firm’s environment. “Not only do we practice family law, but we are a family as well and we support and learn from each other within our practice.”

Theresa has taken an active role in Boston’s legal community. She is active member of the Massachusetts Bar Association and the Boston Bar Association, where she co-chairs the New Lawyers sub-committee of the Family Law Steering Committee. Theresa also participates in the Limited Assistance Representation program through the Suffolk Probate Court, providing free legal counsel to low-income individuals and families.

Theresa is a graduate of the University of North Carolina at Greensboro (B.A., 1994) and Suffolk University Law School (J.D., 2001).