How “Waiving the Will” Could Affect You

In the spring, as part of a my seminar series, I will be presenting “Elder Law for Couples,” in which I will discuss the ins and outs of estate planning for seniors. One of the new issues is a new Massachusetts Supreme Judicial Court interpretation of the “spousal share.”

If one spouse dies and leaves little or nothing to the other spouse in his or her Will, under Massachusetts law the surviving spouse has the right to waive that Will and instead elect an amount designated by state statute as the “spousal share.” Until recently, that election rarely happened because the statute dealing with what constituted the “spousal share” was so ambiguous, especially when there was real estate involved.

In the Massachusetts case, Ciani v McGrath, decided on January 8, 2019, the SJC decided that if the first spouse to die owned real estate and the surviving spouse waived the Will, the surviving spouse obtained a life estate in one-third of the real property, entitling the surviving spouse to any income from the property while the surviving spouse was alive but also, more importantly, giving the surviving spouse the ability to force a sale of the property through a “petition to partition” and obtain a share of the proceeds.  As the holder of a life estate, the surviving spouse would also have certain obligations, such as paying a share of the property taxes, repairs and expenses.

This clarification provided by the Court will make it easier for the surviving spouse to obtain a share of the assets of the deceased spouse, especially in those cases where the marriage was acrimonious. However, there may be unintended consequences for many seniors who are trying to protect assets from MassHealth claims.

I often talk about my fictitious couple, Frank and Mary. Suppose Frank is caring for Mary at home but wants to make sure that, if he dies, Mary will be able to qualify for MassHealth.  Suppose he does that by having a Will that leaves all of Frank’s assets to his children, figuring they will care for their mother.  Now suppose Frank dies owning the home, Mary then needs nursing home care, and Mary applies for MassHealth.  Will MassHealth require Mary to exercise her spousal share, obtain a life estate in the house, and force its sale so that her share of the proceeds can be used to pay for her nursing home care?  We will need to wait and see, but this is certainly a possibility.

For a discussion of these and other estate planning matters for couples, you may want to attend one of the “Elder Law for Couples” sessions at the senior centers in Marlborough, Hudson, Southborough, Hopkinton, Ashland, Holliston, Vineyard Haven or Nantucket.  All senior centers are open to all seniors.  For dates and times, go to our Trusts and Estates blog, “Getting All Your ‘Docs’ in a Row.”

If you need more information on this, you can contact me at (508) 860-1470 or  You can also view my 10-minute Q&A Fireside Chats on Frank and Mary’s YouTube Channel,

About Arthur Bergeron

Art has been practicing law in Massachusetts for over 30 years. He focuses his practice on elder law, estate planning, probate and trust administration, and land use matters. Art counsels senior citizens and their loved ones regarding elder law and special needs planning, asset protection and Medicaid planning. He works with individuals in all areas of estate planning, including wills, trusts, durable powers of attorney, health care proxies and living wills.
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