Massachusetts law gives a testator broad authority to choose beneficiaries, including the authority to choose to omit beneficiaries, but that authority is not absolute. Understanding what can and cannot be done, and how to do it in a way that holds up if challenged, is important when creating a thoughtful estate plan.
You Cannot Fully Disinherit a Spouse
The most important limitation in Massachusetts is the spousal elective share. Under MGL c. 191, section 15, a surviving spouse who is dissatisfied with the will’s provision (including an omitted spouse) can seek to claim a statutory share through the Probate and Family Court. The Massachusetts elective share structure is distinctive and often misunderstood. If the decedent left descendants, the spouse takes $25,000 outright, and receives a life estate in one-third of the remaining real and personal property. If the decedent left kindred but no descendants, the spouse takes $25,000 plus one-half of the remainder, with the same life estate structure. If the decedent left no descendants and no kindred, the spouse takes $25,000 plus one-half of the remainder outright.
This right is personal to the surviving spouse and must be exercised within a deadline after the will is accepted to probate. If the spouse does not elect, the will controls. But the right to elect cannot be taken away unilaterally by the testator. It can be waived by the spouse through a valid prenuptial or postnuptial agreement, but it cannot be extinguished simply by leaving the spouse out of the will.
You Generally Can Disinherit a Child in Massachusetts
Unlike several civil-law jurisdictions, Massachusetts does not have forced heirship for children. A competent testator can leave a child nothing, or leave children unequal amounts, and the will is generally enforceable.
The one statutory exception is the pretermitted child rule at MGL c. 190B, section 2-302. This statute applies to a child born or adopted after the will was executed. If the will makes no provision for a child born later, the statute creates a default share for that child, unless the omission is clear and intentional. The pretermitted child statute is a gap-filler for unanticipated afterborn children.
Explicit Language Is Important
The strongest disinheritance provisions name the excluded person and state that the omission is intentional. Clear language looks something like: “I have intentionally made no provision for my son, John Smith, under this will.”
It is generally not advisable to include reasons for disinheritance in the will. Including reasoning can provide material for a contest, and debate over whether the reason was relevant or still the case at the time of the testator’s death.
No-Contest Clauses
A no-contest clause (also called an in terrorem clause) is a provision that disinherits or reduces the gift to any beneficiary who contests the will or trust. Massachusetts may enforce no-contest clauses in wills under MGL c. 190B, section 2-517, but the enforcement is narrow.
Massachusetts courts have recognized a probable-cause-style limit on no-contest clauses in some circumstances (the classic case is Rudd v. Searles, 262 Mass. 490 (1928)). Where a beneficiary contests with reasonable grounds to believe the contest will succeed, courts may decline to enforce the forfeiture even if the contest ultimately fails. The doctrine’s scope is narrow and fact-specific, and the statute itself does not codify a probable-cause exception. This is intended to prevent the clause from being used to silence legitimate challenges based on capacity, undue influence, or improper execution.
The Difference Between Disinheritance, Partial Bequest, and Conditions
Disinheritance means the person takes nothing. The will (or trust) makes no provision for them, and explicitly states the omission is intentional.
Partial bequest means the person takes a smaller share than the default. A child who would otherwise receive an equal third might receive ten percent, or a fixed dollar amount, or a specific item.
Conditional bequests make the gift dependent on something happening or not happening. “If my daughter completes a residential substance-abuse program by age thirty, she receives her share outright; otherwise, the share remains in trust for her benefit during her lifetime.” Conditional bequests are enforceable in Massachusetts so long as the condition is not illegal, impossible, or against public policy. Conditions that require someone to marry within a faith or to refrain from marrying at all have been scrutinized, and the analysis is fact-specific.
Planning Ahead
Disinheritance decisions can be challenging. A carefully drafted disinheritance provision does not prevent a disinherited person from contesting, but it makes the contest harder to win. A successful contest requires proof of lack of testamentary capacity, undue influence, fraud, improper execution, or revocation. At RackiLaw, we draft disinheritance provisions with clear language, and we realistically assess the risk of contest, so you can feel comfortable with the estate plan you are creating.