Considering your own mortality can be quite the heavy topic for some, and it’s a big part of why so many Massachusetts residents put off writing a will. Estimates suggest well over half of American adults don’t have one. But when someone dies without a valid will, called dying “intestate,” state law steps in and decides who inherits their property. The result is rarely what the person would have chosen for themselves.
If you’re trying to understand what happens to a loved one’s estate without a will, or you’re wondering what would happen to your own assets if you never got around to writing one, here’s what Massachusetts law actually says.
What Is Intestate Succession?
Intestate succession is the legal process that determines who inherits a person’s property when they die without a will. In Massachusetts, this process is governed by the Massachusetts Uniform Probate Code, found in Massachusetts General Laws Chapter 190B. Rather than honoring personal wishes, the law follows a fixed formula based on family relationships. Spouses, children, parents, and other relatives are placed into categories, and each category has a defined claim to the estate depending on who else survives the decedent.
It’s important to understand that intestate succession only applies to probate assets, meaning property that was solely in the deceased person’s name with no other designated way to transfer it. Assets like jointly held property, life insurance policies with named beneficiaries, retirement accounts, and property held in a trust generally pass outside of probate and aren’t affected by these rules. If you’re unsure what counts as a probate asset in the first place, our earlier post on understanding what is a probate asset breaks that down in more detail.
How Massachusetts Divides an Estate Without a Will
The specific outcome depends heavily on which relatives survive the decedent. Here’s how the hierarchy generally works.
Married With Children From That Marriage Only
If the decedent was married and all of their children were also children of the surviving spouse, with no children from any other relationship, the surviving spouse inherits the entire estate. This is the simplest scenario under Massachusetts law and reflects an assumption that the surviving spouse will naturally provide for any shared children.
Married With Children From Another Relationship
The picture changes when the decedent had children outside of the marriage, or when the surviving spouse has children of their own who were not also the decedent’s children. In these blended family situations, the estate doesn’t go entirely to the spouse. Instead, the spouse receives the first $100,000 of the estate plus half of whatever remains, and the decedent’s children divide the rest. This rule exists to make sure children from prior relationships aren’t unintentionally cut out.
Married With No Children, But Surviving Parents
If there are no children at all but one or both of the decedent’s parents are still living, the surviving spouse receives the first $200,000 of the estate plus three-quarters of the balance. The remaining quarter goes to the surviving parent or parents.
Married With No Children and No Surviving Parents
When there are no children and no surviving parents, the spouse inherits the entire estate outright.
Unmarried With Children
If the decedent wasn’t married but had children, those children inherit the estate in equal shares. If one of those children died before the decedent but left children of their own, that deceased child’s share passes down to their descendants instead, a legal principle often referred to as inheriting “by representation.”
No Spouse or Children, But Surviving Parents
When someone dies without a spouse or children, their surviving parent or parents inherit the entire estate.
No Spouse, Children, or Parents, But Surviving Siblings
If there’s no spouse, no children, and no surviving parents, the estate passes to the decedent’s siblings. If a sibling died before the decedent but left children, those nieces and nephews step into their parent’s share.
More Distant Relatives
In the rare event that none of the above relatives survive, Massachusetts law continues working outward through the family tree to grandparents, aunts, uncles, cousins, and other relatives, based on their degree of kinship to the decedent.
When There Are No Heirs at All
If a thorough search turns up no living relatives whatsoever, the estate escheats, meaning it passes to the Commonwealth of Massachusetts or, in certain cases involving veterans, to the Soldiers’ Home. This outcome is uncommon, since Massachusetts law casts a wide net across extended family before an estate is ever forfeited to the state.
Special Circumstances That Affect Inheritance
A handful of situations can complicate the general rules above.
Adopted children are treated exactly the same as biological children for inheritance purposes. Once an adoption is finalized, the adopted child inherits from the adoptive parents just as any biological child would.
Stepchildren and foster children, on the other hand, do not automatically inherit under intestate succession unless they were legally adopted by the decedent. Simply being raised as part of a family isn’t enough under the law.
Children born outside of marriage can inherit from a parent when paternity has been legally established or acknowledged, even if the parents were never married.
Children conceived before, but born after, a parent’s death are treated as though they were alive at the time of death, provided they’re later born alive.
Half-siblings and half-relatives inherit the same share as full relatives would under Massachusetts intestacy law. The law doesn’t distinguish between a half-sibling and a full sibling when dividing an estate.
Immigration status has no bearing on a person’s right to inherit under Massachusetts law.
Why Intestate Succession Is Rarely the Right Outcome
Even when the formulas above lead to a reasonable-sounding result, intestate succession has a fundamental flaw: it treats every family as if it fits the same mold. It can’t account for the unmarried partner you’d want provided for, the friend who became family, the charity close to your heart, or the specific reason you might want to leave a smaller share to one child than another. It also can’t name a guardian for minor children or specify who should manage your affairs, decisions a will allows you to make deliberately rather than leaving to a statutory formula.
We’ve written before about how intestacy can produce outcomes people never would have chosen, including situations where family members you’d hoped to exclude from your estate end up inheriting anyway simply because the law doesn’t know your wishes. A validly executed will is the only way to make sure your estate reflects your actual intentions rather than a default legal template. If you’re also weighing what other documents belong alongside a will, our post on whether you need both a last will and a living will is a useful next read.
Talk to a Massachusetts Estate Planning Attorney
Whether you’re settling a loved one’s estate and trying to figure out who’s entitled to what, or you want to make sure your own affairs are never left to a statutory formula, the team at Logan & Logan LLP can help. Our estate planning and probate attorneys work with families throughout Massachusetts to draft clear, legally sound wills and to guide executors and administrators through the probate process. If a loved one has passed away and you need guidance on guardianship or conservatorship matters as well, we can help with that too.
Contact Logan & Logan LLP today to schedule a consultation and take the guesswork out of your family’s future.
This article is intended for general informational purposes only and does not constitute legal advice. Every estate is different, and you should consult with a licensed Massachusetts attorney regarding your specific situation.
