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Massachusetts Surviving Spouse Rights
Support GuideMassachusetts22 min read

Massachusetts Surviving Spouse Rights

Massachusetts surviving spouse rights: the c. 191 § 15 waiver of the will, its 6-month deadline, $10,000 exempt property, and the family allowance.

By Settled Editorial

Massachusetts does not give a surviving spouse an elective share. It gives an older and narrower right: waiving the will under M.G.L. c. 191, § 15 and taking a fixed statutory portion instead. Two more protections sit alongside it in this paragraph, $10,000 of exempt property and a discretionary family allowance, and the table below sets out the full set of four. The waiver expires 6 months after the will is probated.

That deadline is the part people miss. It runs from the probate of the will, not from the date of death, and a spouse who lets it pass keeps only what the will actually left. This guide sets out what M.G.L. c. 191, § 15 pays, what M.G.L. c. 190B, §§ 2-403 through 2-405 add on top, and the three situations that end a spouse's claim altogether.

What Massachusetts Gives a Surviving Spouse

Four protections exist, and they stack. Three come from the Massachusetts Uniform Probate Code and one from an older chapter of the general laws.

ProtectionWhat it is worthStatuteTiming
Waiver of the will1/3 of the personal and 1/3 of the real property if the decedent left issue; $25,000 plus 1/2 of the rest if kindred but no issueM.G.L. c. 191 § 15File within 6 months after probate of the will
Exempt propertyUp to $10,000 in household goods, cars, furnishings, appliances, and personal effectsM.G.L. c. 190B § 2-403Selected during administration
Right to stay in the home6 months of occupancy with no rent chargedM.G.L. c. 190B § 2-403(b)The 6 months after the date of death
Discretionary family allowanceA reasonable sum for maintenance; the personal representative may set up to $18,000 as a lump sum or $1,500 per month for 1 yearM.G.L. c. 190B §§ 2-404, 2-405During administration

Read the waiver row alongside the $25,000 ceiling described below. Above that figure, most of a section 15 share arrives as income for life rather than as property the spouse owns outright.

None of those dollar figures moves with inflation. Chapter 190B has no cost-of-living section, so $25,000, $10,000, $18,000, and $1,500 mean the same thing in a 2026 estate that they meant when they were written.

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Massachusetts Has No Elective Share

Most states that adopted the Uniform Probate Code took its elective share, which measures a percentage against an augmented estate and scales that percentage with the length of the marriage. Massachusetts did not. Chapter 190B lists §§ 2-201 to 2-299 as Reserved, so the entire elective-share part of the uniform act carries no text in the commonwealth.

Two things follow. First, a page that quotes a Massachusetts spouse an augmented-estate percentage is describing another state's law. Second, the against-the-will remedy lives in chapter 191, the wills chapter, and it predates the Uniform Probate Code. Section 15 sets fractions, not percentages, and it says nothing about nonprobate transfers, so it carries no augmented-estate rule reaching survivorship accounts or beneficiary designations. A spouse whose situation turns on assets that passed outside the will should ask a licensed Massachusetts attorney how § 15 applies to them.

Dower and curtesy are also gone. M.G.L. c. 190B, § 2-112 abolishes both estates outright.

Waiving the Will (M.G.L. c. 191 § 15)

Section 15 lets the surviving husband or wife file a writing in the registry of probate that waives the provisions the will made for them, or that claims the portion of the estate § 15 allows. What the spouse takes then depends on who else survived.

  • The decedent left issue. One third of the personal property and one third of the real property.
  • The decedent left kindred but no issue. $25,000 plus one half of the remaining personal property and one half of the remaining real property.
  • The decedent left neither issue nor kindred. $25,000 plus one half of the remaining personal property and one half of the remaining real property, taken absolutely.

The $25,000 Ceiling on Outright Ownership

This is the trap in § 15, and it changes the answer for any estate above that figure. In the first two cases above, if the spouse would take real and personal property exceeding $25,000 in value, the spouse receives $25,000 and then only the income during life on the excess. The extra personal property is held in trust. The extra real property vests in the spouse for life, running from the death of the deceased.

So a spouse who waives the will of a decedent who left children does not walk away with a third of the estate outright. They walk away with $25,000 outright and a life interest in the rest of that third. Only the no-issue, no-kindred case gives the whole share absolutely.

Section 15 also says where the $25,000 comes from. It is paid out of the part of the personal property in which the spouse is interested. If that part falls short, any person interested may petition, and the deficiency is paid from a sale or mortgage in fee of the real property in which the spouse is interested, in the manner provided for the payment of debts or legacies. That sale may happen before or after the spouse's life interest is set off from the decedent's other real property.

The 6-Month Deadline

The writing must be signed by the surviving spouse and filed in the registry of probate within 6 months after the probate of the will. The clock starts on the date the will was allowed, not on the date of death. Our Massachusetts probate timeline shows where allowance of the will falls in the wider case.

There is one extension. If legal proceedings questioning the will's validity or effect are started after probate, the probate court may, within the same 6 months, on petition and after whatever notice it orders, extend the time for filing until 6 months after those proceedings end. Nothing in § 15 extends the deadline for any other reason.

When a Spouse Cannot Waive at All (M.G.L. c. 209 § 36)

Section 15 opens with an exception, and it points at M.G.L. c. 209, § 36. A probate court may enter a judgment, on the complaint of a person (or of that person's guardian or next friend if the person is incapacitated by reason of mental illness), that the person has been deserted by their spouse or is living apart from that spouse for justifiable cause. Once that judgment exists, the person may convey their real estate as if they were unmarried, and the surviving spouse is not entitled under c. 191, § 15 to waive the will or to claim the portion they would take had the person died intestate.

That judgment has to be obtained during life. It is not something a personal representative can raise for the first time after death.

Exempt Property: $10,000 (M.G.L. c. 190B § 2-403)

The surviving spouse is entitled, from the estate, to a date-of-death value of up to $10,000 in excess of any security interests in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, the decedent's children take that same value jointly.

Three details decide how much a family actually receives:

  • The estate makes up any shortfall. If encumbered items are selected and their value net of security interests, plus the other exempt property, comes to less than $10,000, or if the estate simply does not hold $10,000 of that kind of property, the spouse or children are entitled to other estate assets up to the $10,000 value.
  • It outranks unsecured creditors. Rights to exempt property and to the assets needed to make up a deficiency have priority over all unsecured claims against the estate. The make-up right does abate as needed to let the discretionary family allowance be paid first. Our Massachusetts debt payment priority guide covers the full order of payment.
  • It comes on top of everything else. These rights are in addition to any benefit or share passing to the spouse or children by the will, by intestate succession, or by way of elective share, unless the will provides otherwise.

Selection runs through M.G.L. c. 190B, § 2-405. The surviving spouse, the guardians of minor children, or adult children choose the property. The personal representative may choose if they are unable or fail to do so within a reasonable time, or if a minor child has no guardian. A specific devise cannot be used to satisfy exempt-property rights when the estate is otherwise sufficient, and the personal representative may execute an instrument or deed of distribution to establish ownership of what is taken.

Six Rent-Free Months in the Home (§ 2-403(b))

The surviving spouse may remain in the house of the decedent for not more than 6 months next succeeding the date of death without being chargeable for rent. Read that as a right of occupancy during administration. It does not transfer the house, and it does not stop the estate from selling the property. Whether the home passes to the spouse is answered by the will, by intestacy, or by how title was held, not by § 2-403(b).

The Discretionary Family Allowance (§§ 2-404, 2-405)

The surviving spouse, the minor children the decedent was obligated to support, and children the decedent was in fact supporting are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration. The allowance may not continue longer than 1 year if the estate is inadequate to discharge allowed claims. It can be paid as a lump sum or in installments, and it goes to the surviving spouse, if living, for the use of the spouse and the minor and dependent children.

The word discretionary is doing real work in the statute's own heading. Nobody receives a set number. The personal representative decides, within limits that M.G.L. c. 190B, § 2-405 fixes: without a court order, a lump sum of no more than $18,000, or installments of no more than $1,500 per month for 1 year. The personal representative or any interested person aggrieved by a selection, determination, payment, proposed payment, or failure to act may petition the court, which can set an allowance other than the one the personal representative determined or could have determined.

Two more rules matter to anyone budgeting around it. The allowance is exempt from and has priority over all unsecured claims, and M.G.L. c. 190B, § 3-807(a) has the personal representative make provision for family allowances before paying claims in their order of priority. It is also not chargeable against any benefit or share passing by the will, by intestate succession, or by way of elective share, so it does not reduce the inheritance. The death of a person entitled to the allowance ends the right to payments not yet made. The Massachusetts executor duties guide covers the personal representative side of these calls.

There Is No Probate Homestead Allowance

M.G.L. c. 190B, § 2-402, the uniform act's homestead allowance, is Reserved in Massachusetts. A surviving spouse cannot claim a probate homestead allowance here, and any figure quoted for one is borrowed from another state.

Massachusetts does have a homestead, and it is a creditor exemption on the home rather than a probate claim. Chapter 188 sets an automatic homestead exemption of $125,000 that exists without any filing, and a declared homestead exemption of $1,000,000 created by the written declaration that c. 188, § 3 requires an owner to execute and record. The estate of homestead is exempt from the laws of conveyance, descent, devise, attachment, seizure, execution on judgment, levy, and sale for the payment of debts or legacies, with carve-outs that include tax liens, earlier recorded liens, mortgages, and support orders.

For a widow or widower, c. 188, § 7 is the section to read. A homestead existing at the holder's death continues for the benefit of the surviving spouse and minor children who occupy or intend to occupy the home as their principal residence, and it continues even if the surviving spouse remarries. The decedent's right, title, and interest in the home, apart from that continued homestead, stays subject to devise, descent, and sale for the payment of debts and legacies. Protection from creditors is not the same as ownership.

If There Was No Will

Section 15 waives a will, so it needs one. When someone dies intestate, M.G.L. c. 190B, § 2-102 sets the spouse's share:

  • The entire intestate estate if no descendant or parent survives, or if every surviving descendant of the decedent is also a descendant of the spouse and the spouse has no other surviving descendant.
  • The first $200,000 plus 3/4 of the balance if no descendant survives but a parent does.
  • The first $100,000 plus 1/2 of the balance if every surviving descendant is shared but the spouse has one or more surviving descendants who are not the decedent's.
  • The first $100,000 plus 1/2 of the balance if any surviving descendant of the decedent is not a descendant of the spouse.

Exempt property, the 6 rent-free months, and the family allowance all still apply. Our Massachusetts intestate succession guide works through the full order of heirs.

A Will Signed Before the Marriage (§ 2-301)

A spouse who married the testator after the will was executed has a separate route. Under M.G.L. c. 190B, § 2-301, that spouse receives no less than the intestate share of the portion of the estate that is not devised to a child of the testator who was born before the marriage and is not the spouse's child, not devised to that child's descendant, and does not pass to either of them under § 2-603 or § 2-604.

Three findings defeat the claim: the will shows it was made in contemplation of the marriage, the will says it stays effective even if the testator marries afterward, or the testator provided for the spouse outside the will and the intent that the transfer replace a testamentary gift is shown by the testator's statements or reasonably inferred from the amount or other evidence. Devises to the spouse are applied first in satisfying the share, and other devises abate under § 3-902. The Massachusetts will requirements guide covers what makes the underlying will valid.

When Someone Stops Being a Surviving Spouse

Divorce. M.G.L. c. 190B, § 2-802 says a divorced individual is not a surviving spouse unless a later marriage puts them back together at the time of death. A judgment of separation that does not end the status of husband and wife is not a divorce for this purpose. Subsection (b) also excludes a person who obtained or consented to a divorce or annulment that is not valid in the commonwealth, a person who married someone else after an invalid decree the decedent obtained, and a person who was party to a valid proceeding closed by an order purporting to end all marital property rights.

Homicide. Under M.G.L. c. 190B, § 2-803(b), an individual who feloniously and intentionally kills the decedent forfeits all benefits under Article II, and the statute names them: an intestate share, an elective share, an omitted spouse's or child's share, exempt property, and a family allowance. A conviction, once appeals are exhausted, settles the question. Without one, § 2-803(g) directs that the court shall, on the petition of an interested person, determine under the preponderance standard whether the individual would be found criminally accountable. It is a duty on petition, not a discretion.

An agreement signed before the marriage. M.G.L. c. 209, § 25 lets parties make a written contract before marriage setting what property remains or becomes the property of the husband or wife, with limitations taking effect at the marriage as if written into a deed. Chapter 190B has no waiver section for spousal rights, because Part 2 of Article II is Reserved, so whether a particular agreement blocks a § 15 waiver or an allowance claim is a question for a licensed Massachusetts attorney.

What the Waiver Decision Turns On

A surviving spouse deciding whether to waive is generally looking at five things:

  1. The date the will was allowed. The Probate and Family Court docket carries the date the will went through probate, and that date fixes the 6-month deadline.
  2. What the will already gives. Set against the § 15 fractions, and then against the $25,000 outright ceiling, which decides how much of a § 15 share would arrive as a life income interest rather than as property owned outright.
  3. What passes outside the will. Survivorship accounts, beneficiary designations, and jointly held real estate sit outside the probate case, and § 15 says nothing about them.
  4. The allowances. Exempt property and the family allowance come off the top and neither one reduces the inheritance, so they are a separate question from the waiver.
  5. The homestead. A recorded declaration is on file at the registry of deeds, and the c. 188 automatic exemption applies without one.

On an estate large enough to owe tax, the waiver decision also interacts with the marital deduction, because how much passes to the spouse and the form it arrives in both move the estate tax bill.

Bring the will, the inventory, and the deed to a licensed Massachusetts attorney before filing a waiver. The election is a one-way door, and the § 15 arithmetic on a blended family or a real-estate-heavy estate is easy to get wrong.

Frequently Asked Questions

Does Massachusetts have an elective share?

No. The elective-share part of the Massachusetts Uniform Probate Code, c. 190B §§ 2-201 to 2-299, is Reserved and carries no text. A surviving spouse who wants to override a will uses the older waiver in M.G.L. c. 191, § 15 instead, which sets fixed fractions rather than a percentage of an augmented estate.

How much does a Massachusetts surviving spouse get by waiving the will?

M.G.L. c. 191, § 15 gives one third of the personal property and one third of the real property if the decedent left issue. If the decedent left kindred but no issue, the spouse takes $25,000 plus one half of the remaining personal and one half of the remaining real property. In both of those cases, anything above $25,000 in value comes only as income for life.

How long does a surviving spouse have to waive the will in Massachusetts?

Six months after the probate of the will. Under M.G.L. c. 191, § 15 the spouse files a signed writing in the registry of probate within that window. If a proceeding questioning the will's validity or effect is started after probate, the probate court may, within the same 6 months and on petition, extend the time until 6 months after those proceedings end.

How much exempt property does a Massachusetts surviving spouse get?

Up to $10,000 in date-of-death value, in excess of any security interests, in household furniture, automobiles, furnishings, appliances, and personal effects, under M.G.L. c. 190B, § 2-403. If the estate does not hold $10,000 worth of those items, other estate assets make up the difference. If there is no surviving spouse, the decedent's children take the same value jointly.

Does Massachusetts have a homestead allowance for a surviving spouse?

No. M.G.L. c. 190B, § 2-402, the uniform act's homestead allowance, is Reserved in Massachusetts. The Massachusetts homestead is a different thing: the c. 188 estate of homestead, worth $125,000 automatically and $1,000,000 by recorded declaration, which shields the home from many creditors and continues after death for a surviving spouse who lives there.

Can a surviving spouse stay in the house in Massachusetts?

For up to 6 months rent free. M.G.L. c. 190B, § 2-403(b) lets the surviving spouse remain in the decedent's house for not more than 6 months next succeeding the date of death without being chargeable for rent. That is a right of occupancy during administration, not a transfer of ownership.

How much family allowance can a Massachusetts personal representative pay without a court order?

Up to $18,000 as a lump sum, or installments of up to $1,500 per month for 1 year, under M.G.L. c. 190B, § 2-405. Anyone aggrieved by that determination, including the personal representative, may petition the court, which can set an allowance other than the one the personal representative chose.

Can a Massachusetts surviving spouse be cut out entirely?

Rarely, but it happens. A spouse who misses the 6-month waiver deadline is left with whatever the will gives. A spouse can also lose the right under M.G.L. c. 209, § 36 after a probate court judgment of desertion or living apart for justifiable cause, under c. 190B, § 2-802 after a divorce, and under § 2-803 after feloniously and intentionally killing the decedent.

Related Guides

This guide is general information about Massachusetts estates, not advice for your situation. Confirm anything that affects your estate with the Probate and Family Court for the county where the decedent lived or a licensed Massachusetts attorney.

Sources:

It is not legal advice.

Information current as of July 29, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Massachusetts can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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