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“Love is lovelier the second time around…”[1] or is it?:  Intestate Succession and Second Marriages

by | Jan 20, 2021 | Estate Planning, Probate And Estate Administration, Probate And Estate Litigation, Wills And Trusts |

By Sandra MacGregor O’Brien, Esq.

It is becoming more and more common for people to marry more than once. While it is important, especially with later-in-life marriages, to establish a prenuptial agreement, the one thing couples seem to neglect is updating their estate plans after a second marriage. Most do not know that if you are married for the second (or third) time and you die without a will, Massachusetts law will dictate how your assets are distributed under the laws of intestate succession.  Further, without a will, a second spouse will not inherit your entire estate if you have children from a prior marriage, and your children from your prior marriage will only receive a portion of your estate.  This can create a situation of unintended consequences, discord, resentment, and family fighting. All these problems and family strife can be avoided with proper estate planning, starting with having a will.

What is Intestate Succession?

If you die without a will in Massachusetts, your assets will go to your closest relatives under state “intestate succession” laws.  This means that Massachusetts law, specifically M.G.L. Chapter 190B, Sections 2-101 and 2-102, will decide how your assets are distributed upon your death.  

Some of your assets are not subject to intestate succession.  Usually, this includes only assets that you own alone, in your own name.  Some examples are:

  • property you have transferred to a living trust
  • life insurance proceeds
  • funds in an IRA, 401(k), or other retirement accounts
  • securities held in a transfer-on-death account
  • payable-on-death bank accounts, or
  • property you own with someone else in joint tenancy or tenancy by the entirety.

These assets are passed to the surviving co-owner or beneficiary you named whether you have a will or not.

Under intestate succession, who gets what depends on whether you have living parents or descendants (children, grandchildren, etc.).  If you do not have surviving relatives, then your spouse inherits all your intestate property.  If you do, they and your spouse will share your intestate property.

Who gets What?

If you die with a spouse, but have no descendants or parents, your spouse inherits everything.

If you die with surviving parents or other relatives, but have no descendants, your surviving spouse inherits the first $200,000 of your intestate property, plus 2/3 of the balance of the estate. The rest of your property goes to your parents or other relatives in the order established by Massachusetts law.

If you die with children or other descendants from you and your surviving spouse, and your surviving spouse has no descendants from previous relationships, your surviving spouse inherits everything.

If you die with children or other descendants from you and the surviving spouse, and your surviving spouse has descendants from previous relationships, your surviving spouse inherits $100,000 of your intestate property plus 1/2 of the balance of the estate.

If you die with descendants who are not the descendants of your surviving spouse, your spouse inherits $100,000 of your intestate property plus 1/2 of the balance of the assets in the estate.  This happens when you only have children from a prior marriage or relationship and not with your spouse.  This is most likely not the outcome that you would have wanted if you made an estate plan.

The bottom line is that when it comes to planning for how your assets are distributed upon your death, don’t leave it up to the Commonwealth of Massachusetts and intestate succession laws to decide. Make sure you have an Estate Plan that specifies how your assets will be distributed. Prior planning will go a long way in keeping family peace and harmony.


[1] FRANK SINATRA, ET AL., The Second Time Around, on SINATRA’S SINATRA (Reprise Records, 1963).

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