Mass. General Laws c.190B, Article II, Part 1: Commentary

Massachusetts and general commentary on Article II, Part 1 of the Mass. Uniform Probate Code.

General comment

Part I of Article II contains the basic pattern of intestate succession historically called descent and distribution. It is no longer meaningful to have different patterns for real and personal property, and under the proposed statute all property not disposed of by a decedent's will passes to the decedent's heirs in the same manner.

A principal purpose of this Article and Article III of the Code is to provide suitable rules and procedures for the person of modest means who relies on the estate plan provided by law. While the prescribed patterns may strike some as rules of law which may in some cases defeat intent of a decedent, this is true of every statute of this type. In assessing the changes it must therefore be borne in mind that the decedent may always choose a different rule by executing a will.

The principal features of the statute are:

1. So-called negative wills are authorized, under which the decedent who dies intestate, in whole or in part, can by will disinherit a particular heir.
2. A surviving spouse receives the whole of the intestate estate, if the decedent left no surviving descendants and no parents or if the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has no descendants who are not descendants of the decedent. The surviving spouse receives the first $200,000 plus three-fourths of the balance if the decedent left no surviving descendants but a surviving parent. The surviving spouse receives the first $100,000 plus one-half of the balance of the intestate estate, if the decedent's surviving descendants are also descendants of the surviving spouse but the surviving spouse has one or more other descendants. The surviving spouse receives the first $100,000 plus one-half of the balance of the intestate estate, if the decedent has one or more surviving descendants who are not descendants of the surviving spouse.
3. The intestate estate not passing to a surviving spouse passes to the decedent's surviving descendants by representation or, if none, to the decedent's surviving parents or, if none, to the parents' surviving descendants or, if none, to the decedent's surviving next of kin.
4. A system of representation called per capita at each generation is adopted. Under the per capita at each generation system, all grandchildren (whose parent has predeceased the intestate) receive equal shares.
5. Estates of dower and curtesy are abolished and, along with the statutory provisions for necessaries, are replaced with allowances under Part 4.
6. For the purposes of intestate succession, a child is the child of his or her natural parents, regardless of their marital status. An exception provides that an adopted child is the child of his or her adoptive parents and not of the natural parents. However, this exception does not prevent a child who is adopted by the spouse of a natural parent from taking a share of the intestate estate of either natural parent.