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.
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.