Page 16 THE EVERETT ADVOCATE – FRiDAy, JAnuARy 3, 2025 Spouse Electing Against The Will I n order to help offset the freedom that each spouse has to execute his or her own Will thereby leaving his or her property to anyone he or she wishes, a Massachusetts statute is on the books which gives the surviving spouse an absolute right to set aside or “waive” the decedent spouse’s Will and claim a share of the deceased spouse’s probate estate. This is set forth in Mass General Laws Chapter 191, Section 15. This is a fundamental and important right for the surviving spouse. Consequently, a married individual who is about to execute a Will should have this fact clearly in mind during the initial planning process. Electing against the Will and claiming the statutory share may be made without notice and as a matter of personal privilege. In order to do so, a written waiver and claim form must be filed with the Probate Court within six months of the probate of the Will. The law is very strict in requiring the waiver and claim to be made within the specified time period if it is to be effective. The claim may be made prior to the probate of the Will. It must be made prior to the death of the surviving spouse because due to its personal nature, it cannot be made by the executor or administrator of a deceased widow or widower. Once made, the claim cannot be withdrawn and must be absolute. No conditions may be attached to it. It is an all or nothing proposition. The right to make the waiver and claim the statutory share will be lost if the surviving spouse accepts any of the benefits under the Will. The surviving spouse can, however, waive the Will and claim a statutory share and yet still serve as Executor of the Will. If , for example, the husband dies leaving children and a wife, even if the husband leaves nothing to his wife pursuant to the terms of his Will, his wife would be able to elect against the Will and claim one third of the estate. If the estate exceeds $25,000, then his wife would receive $8,333 outright and would have the benefit of a life estate in the entire estate above and beyond $25,000 (for example, right to receive income for life from the probate assets that generate investment income). If the husband dies leaving no children but does leave a wife and kindred (blood relationship based upon the law of consanguinity), his wife would be able to claim the first $25,000 plus a life estate in one half Meet the 2024 Everett High School Crimson Tide Co-Ed Varsity Cheerleading Team of the remaining property. If the husband dies leaving no children and no kindred, his wife would be able to claim the first $25,000 plus one half of the remaining property outright. Prior to 1994, a spouse’s statutory share under MGL chapter 191, Section 15 applied only to the decedent’s “probate” estate. However, in Sullivan v. Burkin, a 1994 Massachusetts Supreme Court Case, the court announced that it would no longer follow the rule in a previous 1945 Massachusetts case, Kerwin v. Donaghy, which denied a surviving spouse any claim against the assets held in a living trust created by the deceased spouse. Therefore, for any living trusts created after January 23, 1984, the Supreme Court takes the position that the surviving spouse’s right to elect against the Will and claim his or her statutory share shall include the right to make a claim against assets held in a living trust created by the deceased spouse wherein the deceased spouse alone retained the right during his or her lifetime to direct the disposition of the trust assets for his or her benefit. The Supreme Court did not clarify whether or not the surviving spouse’s right to claim against assets held in such a living trust would apply to trusts created prior to the date of marriage. The surviving spouse must compare very carefully his or her statutory rights in the “probate” estate (as expanded in the rule set forth in Sullivan v. Burkin) with the testamentary provisions as set forth in the decedent spouse’s Will, and then make a choice whether or not to waive the Will and claim the statutory share. The complexity of making this analysis should not be underestimated. This is an often-overlooked area of the law that allows a surviving spouse left out of a deceased spouse’s Will to seek relief under this statutory provision. Joseph D. Cataldo is an estate planning/elder law attorney, Certified Public Accountant, Certified Financial Planner, AICPA Personal Financial Specialist and holds a masters degree in taxation. The 2024 Everett High School Crimson Tide Co-Ed Varsity Cheerleading Team. Back row, shown from left: Kyleigh Ridlon, Maria Luiza Dos Santos, Gianna DiPaolo, Ashley Pierre, Leosmary Perez, Jackie Salvador, Capt. Josee Mayard Colin, Capt. Alexa Uga, Natalie Truong, Riliegh Kenney, Bianca Leal, Olivia Dresser, Danica Pham, and Leandro Perez; Front row, shown from left: Narnia Horatius, Arianna Osorio-Bonilla, Maria Helena Rangel, Ella Theligene, Justine Lynch, Capt. Sarah Tiberri, Kathleen Silva, Kaitlyn Peralta, Maria Isabel Rangel, McKenzie Rivera, Isabella Pacini, and Mazzarine Jean. T Seniors, shown from left: Jackeline Salvador, Sarah Tiberii, Alexa Uga, Josee Colin, Natalie Truong, and Kathleen Silva. he 2024 Everett High School Crimson Tide Co-Ed Varsity Cheerleading Team introduced themselves at home on Tuesday night. Their Senior Night will be held on Saturday, Feb. 1 at 5:30 p.m. Flyers Ariana Osorio-Bonilla and Sarah Tiberii performed lifts. (Advocate photos by Tara Vocino) Flyers Ariana Osorio-Bonilla, Sarah Tiberii and Isabella Pacini performed extensions at Everett High School on Tuesday night. Captains, shown from left: Sarah Tiberii, Alexa Uga and Josee Colin.
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