Giving clarity - and teeth - to a surviving spouse's elective share of the decedent's estate.

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Described by the Supreme Judicial Court as "unwieldly and perplexing to apply in most instances," the Massachusetts spousal elective share statute, "is intended to prevent spousal disinheritance, either by inadvertence or design," through allowing "a dissatisfied surviving spouse" to "waive the provisions of a deceased spouse's will and take a statutorily prescribed share of the decedent's estate." Ciani v. MacGrath, 481 Mass. 174, 175, 186 n12 (2019). In Ciani, the SJC attempted both to clarify and fortify the statute, holding in part that it allows a dissatisfied surviving spouse to bring an action to realize the value of his or her share of the decedent's real estate. Where the decedent has left issue (i.e., offspring or lineal descendants), the statute entitles a dissatisfied surviving spouse to elect - in lieu of his or her formal bequest (or lack thereof) - to receive a share of the decedent's estate comprising one-third of the decedent's personal property and one third of the decedent's real property. The SJC focused its analysis on situations in which that share exceeds $25,000 in value, reading the elective share statute to allow a dissatisfied surviving spouse to receive (1) the first $25,000 from the decedent's personal property or, if necessary, from the decedent's real property as well; (2) income from the a trust containing the remaining third of the personal property for life; and (3) an ownership interest the remaining third of the decedent's real estate, for life. 


To hold otherwise - that, for example, the elective share statute only allows the surviving spouse to receive income from productive use of the decedent's real estate - would "allow the offending spouse's heirs to do what he or she could not" by not putting the real estate to income-generating use and therefore functionally disinheriting the surviving spouse. Id. at 183. Only a life estate provides "a well-established real property ownership interest with clearly defined rights and obligations, as well as an ascertainable value." See id. By virtue of his or her life estate, a surviving spouse may petition for partition in order to extract the value of his or her interest in the subject real property. Id. at 187. Through a partition action, the court divides property among common owners, either physically into smaller lots or through distribution of sale proceeds. The surviving spouse therefore could, if possible, separate his or her share of the real property for his or her personal use and/or benefit. Whether via sale or negotiated settlement, the surviving spouse also could realize the financial worth of his or her interest in the decedent's real property, however limited by the fact that the interest, as a life estate, does not survive him or her and instead reverts back to the decedent's heirs at his or her death. A life estate also means the surviving spouse must "be compensated for the value of [his or her] interest in any properties that have already been sold" through the estate administration process, "whether from the proceeds of each sale or some other source." Id. at 187-88. In the process, an "unwieldy and perplexing" statute nonetheless protects the surviving spouse as the Legislature intended. 

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