Submitted by Theberge8 on Wed, 10/27/2010 - 08:05
I've been married to my husband for over ten years now. He has an ex-wife and grown children. One of the children is, I believe, the executor of his will. My husband never showed me his will and he is very ill now and likely to die soon. I don't want to talk to him about this now (and I know I should have talked to him a long time ago) but I'm worried about the house we live in and whether I will get to stay in it. The house is in my husband's name only. One of my friends said I may be able to get the house because of my spousal share, but I don't know what that means. Thank you for any help you may offer.
Spousal Share
That is a very difficult situation. Not only caring for a sick and dying spouse, but having anxiety over your future support and comfort. Although it may be awkward, is there any chance that you could discuss these issues with your husband? Everyone is different and I certainly do not know your husband, but many of my clients in his situation are very interested in cleaning up any "messes" that they may be leaving behind. Of course your husband might not consider this to be a "mess" that requires cleaning. The fact that he has never discussed his Will with you would indicate that there may be some sensitivity on his part.
You need to determine how the real estate is held (or owned). You can access most deeds online, but you can also visit the appropriate Registry of Deeds to get a copy of the current deed. This is important because the Will only controls "probate assets". If the property is held in any way other than in your husband's individual name (e.g. in trust or in the children's names), then it is not a probate asset and therefore is not controlled by the Will.
When was the Will executed? If the Will was executed before your marriage AND your husband dies before 7/1/2011, then technically he does not have a Will. MA law up until 7/1/2011 is that a marriage that occurs after a Will is executed invalidates the prior Will. In that scenario your husband will be deemed to have died intestate - meaning that you would be entitled to your intestate share of his probate estate. In a situation where a decedent dies intestate and leaves both a spouse and issue (you mentioned that he has children - so he has "issue"), then the surviving spouse is entitled to 1/2 of the personal (probate) property, and 1/2 of the real (probate) property.
If the Will was executed after your marriage and you are not happy with the dispositive provisions of the Will, then you can elect to “waive” the Will. Essentially you will need to decide between taking whatever with Will leaves you, or filing the paperwork with the Probate Court necessary to elect your statutory share. This share is scheduled to change soon, but right now it is basically $25,000 PLUS a life estate in 1/3 of the probate estate in excess of $25,000. That is not a lot! Remember that both the statutory share and the intestate share relate to probate assets. With some planning, it is very possible that your husband has no probate assets at all. There are some remedies in that situation, but nothing pretty or easy.
Sorry that I do not have better news - but you really should sit down with a experienced probate attorney and unravel this mess before it is too late.
Attorney Peter Bernardin