Legal Question in Wills and Trusts in Massachusetts

[Not this answers assumes there was no Will drafted for either spouse.]

Under the new laws, you answered your own question. If they both died intestate, upon the first to die, the law states that all the property would pass to the surviving spouse, unless i) the first to dies parent(s) are still alive, or ii) one or both of the spouse(s) had children with a third party.

If a parent of the first to die had been alive at the time of the death than 1/4 of the excess over $200,000 would go to such parent(s).

Upon the second spouse to die, the property would use the same criteria, and pass to i) the surviving spouse (n/a), ii) the surviving children (n/a), iii) the parents of the second to die (if none move to iv), and finally iv) the descendants of the parents of the second to die.

This results of dying intestate would result as you described in your question. Assuming no other children from other marriages, and no parents of either spouse survived, then all of the assets of the first spouse would pass 100% to the second spouse, and then from that spouse on their death, to their respective kindred.

[Text of section added by 2008, 521, Sec. 9 effective January 2, 2012. See 2008, 521, Sec. 44 as amended by 2010, 409, Sec. 23.]

Section 2-102. [Share of Spouse.]

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;

[rest of statute omitted]

The particular facts may warrant a different outcome, however, this is the result for intestate estates.

If you need any help, or wish for a consultation, or would like to draft your own estate plan to avoid this outcome, feel free to call my office at 617.458.6593.

Regards,