When someone dies without a valid will, the law calls that person “intestate.” The decedent’s assets will be distributed according to a statutory formula that may look very different from what the decedent would have chosen. Understanding the default rules helps explain why even a basic will is worth having.
What “Intestate” Means in Practice
Intestate succession only governs probate assets. Assets that pass outside of probate (joint accounts with survivorship, accounts with beneficiaries, life insurance with a named beneficiary, assets titled in a trust) will follow their own transfer rules. But any asset titled in the decedent’s sole name with no beneficiary designation becomes subject to probate, and thus the intestacy statute.
If the decedent owned probate assets, some form of administration is required in the Probate and Family Court. A personal representative is appointed, debts and taxes are paid, and the remaining assets are distributed under MGL c. 190B, sections 2-101 through 2-103 if the decedent left no will. The process may take longer and often costs more than it would with a will in place because the default rules can produce contested outcomes, especially in blended families.
The Spouse’s Share Depends on Who Else Survives
Many families assume that a surviving spouse automatically inherits everything. Under Massachusetts law, that is true only in specific situations. Section 2-102 lays out the spouse’s share based on who else survives the decedent.
If no descendant or parent of the decedent survives. The surviving spouse takes the entire intestate estate.
If all descendants are also descendants of the surviving spouse, and the spouse has no other descendants. The surviving spouse takes the entire probate estate. This is the closest scenario to the common assumption.
If no descendant survives, but a parent of the decedent does. The surviving spouse takes the first $200,000 plus three-fourths of the remaining probate estate. The decedent’s parent takes the rest.
If all descendants are also descendants of the surviving spouse, but the spouse has one or more descendants who are not descendants of the decedent. The surviving spouse takes the first $100,000 plus one-half of the remaining probate estate. The decedent’s descendants take the rest.
If one or more of the decedent’s surviving descendants are not descendants of the surviving spouse. The surviving spouse takes the first $100,000 plus one-half of the remaining probate estate. The decedent’s descendants take the rest.
The last two scenarios are the ones that catch blended families off guard. When either spouse has children from a prior relationship, the surviving spouse does not inherit the full estate, even when the couple had been together for decades.
When Descendants Inherit
If the decedent leaves no surviving spouse, or if part of the estate passes past the spouse under the rules above, the balance goes to the decedent’s descendants under section 2-103. Descendants take “by right of representation,” meaning each child takes an equal share, and if a child predeceases the decedent leaving children of their own, those grandchildren divide the deceased child’s share. Adopted children are treated the same as biological children for intestacy purposes.
When Parents, Siblings, or More Distant Relatives Inherit
If the decedent leaves no surviving spouse and no descendants, the estate passes according to a defined order. First, to the decedent’s parents equally, or to the surviving parent. If no parent survives, the estate passes to the descendants of the decedent’s parents (the decedent’s siblings, nieces, and nephews) by right of representation. If none of those relatives survive, Massachusetts then passes the estate to the decedent’s next of kin in equal degree.
If no relatives in these categories survive, the estate may ultimately escheat to the Commonwealth, though the statute reaches far enough that this is rare.
Personal Representative Appointment Under Intestacy
Without a will, there is no nominated personal representative. The court appoints one based on a statutory order of priority. When more than one eligible person seeks the role, disputes can arise. A will that nominates a personal representative saves time, cost, and family friction.
How Intestacy Differs From a Plan
The statutory shares are rigid, and do not replace the need for a well thought out estate plan. The intestacy statute does not account for a child who has special needs, a stepchild the decedent raised from infancy, a charity the decedent supported for years, or a spouse who remarried and has commingled finances with someone new. Relying on intestacy rather than creating a comprehensive estate plan can result in missed planning opportunities relating to minor children, estate taxes, and long-term control of assets.
The default rules are a backstop, not a plan, and they were drafted to produce a reasonable answer for the average estate rather than the right answer for any particular family.
Planning Ahead
Dying without a will does not mean assets go to the state, but it does mean the state dictates the distribution of assets based on a rigid statutory formula. Families in Massachusetts who want to maintain more control over disposition of their assets should have at least a basic will in place. A short, well-drafted will can address guardianship of minor children, name a personal representative, and direct distributions in a way that reflects the family’s actual relationships rather than the statute’s generic assumptions.
References
- MGL c. 190B, section 2-101 (intestate estate, general rule)
- MGL c. 190B, section 2-102 (share of the spouse)
- MGL c. 190B, section 2-103 (share of heirs other than surviving spouse)
- MGL c. 190B, section 2-106 (representation: per capita at each generation)
- MGL c. 190B, section 2-114 (parent and child relationship, including adoption)
- MGL c. 190B, section 3-203 (priority among persons seeking appointment as personal representative)