When good things happen to bad people: The spousal elective share

Issue Vol. 10 No. 3 January 2008 By Maureen E. Curran

In Massachusetts, in order to protect a surviving spouse, if a testator does not provide for his or her spouse in a will, the surviving spouse may “waive the will” pursuant to G.L. c. 191, §15. Depending on the size of the estate and whether the testator died with issue or kindred, the surviving spouse will receive a certain proportion of the estate. As will be discussed below, applying specific facts to the statute can be a logistical nightmare and will create havoc on the testator’s estate plan. Moreover, as the statute contemplates, there are some spouses who do not warrant protection.

To that end, the statute makes an exception when the couple has been “living apart from each other for justifiable cause.” See G.L. c. 209, §36. One can think of a plethora of reasons why couples would be living apart for justifiable cause, yet the statute requires that in order for this statute to take effect, a “probate court” must have previously entered a judgment that a person had been deserted or living apart for justifiable cause. This statute was enacted in 1906, long before the enactment in 1978 of the domestic relations abuse prevention statute, G.L. c. 209A. As a recent case that was pending in Suffolk County Probate and Family Court illustrates, a husband who had physically abused his wife and was prevented from living with his wife pursuant to an existing restraining order from a district court was nonetheless allowed to waive his wife’s will. This case also illustrates that when a court attempts to apply the statute to real life circumstances, its lack of clarity can sometimes result in a windfall for undeserving spouses.

The decedent and the surviving spouse were married in 1985. It was a second marriage for both of them, and the decedent had two children from her first marriage. At the time of their marriage, the decedent was the sole owner of her home where she resided with her two children. The ownership of the property remained in her name alone from the date of purchase in 1981 until her death in 2005. Three and a half years prior to her death, the couple separated. The decedent continued to live in the home with her adult son. The decedent’s daughter lived in her own home with the decedent’s granddaughter.

Seven months prior to her death, the surviving spouse forced his way into the decedent’s home. When she asked him how he gained entrance, he told her that “I used to work with locks years ago.” The decedent asked him repeatedly to leave. He left after she gave him a bag of groceries. When the decedent went back to bed, the surviving spouse re-entered the house. The decedent again asked him to leave, and he stated that he was not leaving and this was his house. When the decedent tried to call a friend to assist her in getting the surviving spouse to leave, he became more hostile and abusive. He snatched the phone out of her hand, pushed her into the wall, grabbed her by the neck, and was kicking her with his knee. She finally broke away, ran upstairs, and called 9-1-1 on her cell phone.1

The next day, the decedent obtained an abuse prevention order ordering the surviving spouse not to abuse her, not to contact her and to immediately leave and stay away from her residence. The order was extended the following week with an expiration date of Jan. 5, 2006. The decedent died while the restraining order was still in force.

Around the time the abuse occurred, the decedent was diagnosed with melanoma. During her final illness, the decedent — without the assistance of an attorney — prepared her last will and testament. She left her entire estate to be distributed “equitably to her children,” except that her residence was left solely and exclusively to be held in trust for her granddaughter, two other adjoining properties were left to her daughter, and her automobile was left to her son. The surviving spouse was not mentioned in the will.

During the decedent’s final hospitalization, the surviving spouse took her keys and moved back into the decedent’s home without her permission. After her death, the surviving spouse continued to live at the residence with his adult stepson and refused to leave or pay any expenses of the property. He even went so far as to bring his girlfriend to the decedent’s home over the strong objection of her two children. When the decedent’s daughter filed a Petition to Probate her mother’s will, the surviving spouse filed a waiver of the will pursuant to G.L. c. 191, § 15. The decedent’s daughter filed an equity complaint to determine the rights of the parties.

Other than the real property, the estate had minimal personal property at a value of approximately $50,000, most of which was in an account titled “in trust” for the decedent’s daughter. Commenting on the effect of a waiver, 1 Belknap, Newhall’s Settlement of Estates and Fiduciary Law in Massachusetts, § 20:3 (5th ed. 1994), states:

It is in the havoc which it works on the rest of the will that the devastating effects of the waiver become apparent. Where the testator has set up a complicated framework for distributing the estate, a waiver by the surviving spouse completely upsets it and leaves only shattered fragments to be reassembled by the court.

Here the “shattered fragments” were profound. Instead of providing for her children and grandchildren as she had intended, the court had to wrestle with the bizarre question of just what is meant by the surviving spouse entitlement to $25,000 plus “only the income” during [his] life generated from his one-third share of the real and personal property. Did a one-third income only life estate entitle him to live in the property rent free, as he alleged, or only entitle him to the one-third of the income, if any, derived from the property? If he was entitled to live there, but not rent-free as he alleged, how much credit should he be given toward the fair market rental value of the property, and was he still obligated to share in the expenses of the property? Also, did his interest in the property entitle the surviving spouse to invite his girlfriend to live with him over the objection of the decedent’s children? Was the bank account that the decedent had titled in her own name “in trust” for her daughter part of the estate for spousal waiver pursuant to Sullivan v. Burkin, 390 Mass. 864 (1984)?

As is often the case, especially in low value estates such as this one, the cost of litigating these issues is prohibitive resulting in a settlement. That may explain the scarcity of appellate cases to help determine just how the courts should interpret this statute. One thing is certain in this case. The decedent’s intent was not upheld. Rather than providing for her children and grandchild as she had wished, her abusive husband lived rent free for a year and a half and walked away with a cash payment.

For some years now, there have been discussions and committees dedicated to the task of revising the spousal elective share statute. Everyone seems to agree that it is in need of revision, but there is no agreement as to how it should be accomplished. At the very least this case illustrates that the Legislature should consider expanding G.L. c. 209, § 36 to include prohibiting a surviving spouse who is subject to a G. L. c. 209A restraining order from being able to waive a will. In addition, the statute must be clearer as to what is meant when there is a surviving spouse and issue and the total value of the estate is greater than $25,000. Normally, a life estate does confer property rights, but what property rights, if any, are conferred by receiving “only the income during [the surviving spouse’s] life of the excess of his or her share of such estate above [$25,000], the personal property to be held in trust and the real property vested in him or her for life”? G. L. c. 191, § 15. Does the statute dictate that the property, unless it is income property, be sold? In its current form, the rights of the surviving spouse and legatees are unclear.

In revising this statute, it should be kept in mind that there could indeed be “justifiable cause” to prohibit a spouse from waiving a will even though the parties are not legally separated. The surviving spouse in the example noted above should not have been rewarded for his bad acts in violation of the testator’s clear intent to the contrary. In addition, if a spouse is allowed to waive a will, the statute must provide the courts with better guidance as to exactly what benefits should be conferred on the surviving spouse and how the court can best “reassemble” the “shattered fragments” of the testator’s intent.

End notes

1.    The stated facts were taken from the unchallenged affidavit of the decedent when she was applying for a restraining order.