Posts Tagged: spousal elective share

Spotlight on Spousal Elective Share

The BBA has been a part of many pieces of legislation over the years, especially those that have an impact on our core principles – facilitating access to justice, serving the community at large, and advancing the highest standards of excellence for the legal profession.  However, the BBA’s process to thoroughly examine, deliberate, and eventually take a position on a bill is an involved one, even for seemingly simple bills.  To complicate matters further, the legislative process going on across the street from us is equally – if not even more – harrowing and intricate.  So what does it take to champion a bill through the BBA and on to become a law?  In a word: patience.

Let’s take a closer look at a long-time BBA supported bill, currently with the number S705 – An Act relative to the elective share of surviving spouses.

The Bill

The bill is in the area of trusts and estates law, which is well-known among lawyers as a particularly dense practice area.  Essentially, a spousal elective share is a potential remedy for a spouse left out of his or her significant other’s will.  Under current law, this disinherited spouse is entitled to one-third of the deceased spouse’s total estate.  The law ignores factors such as the duration of marriage, the age of the surviving partner, and the state of the economic partnership.

The spousal elective share bill changes the calculation used to determine the elective share.  Under the bill, the share is a sum of all the couple’s assets, multiplied by a percentage based on the length of the marriage – ranging from three to 100 percent with fifteen or more years of marriage – then dividing that total in half.  The bill reflects a similar economic theory to the one behind the equitable distribution system that is applied when a marriage ends in divorce.


The BBA has been working on spousal elective share legislation since the 1990s.  At that time, the BBA and the Women’s Bar Association (WBA) composed one version of the bill, while the Massachusetts Bar Association (MBA) had another.  Over the next few years, these three groups worked together to draft a single consensus bill that the BBA Council first voted to endorse in 2007.  This bill has been replaced by a new bill which is similar, though not identical to the Uniform Probate Code’s spousal elective share provision.  The BBA’s Family Law Steering Committee and Trusts and Estates Section voted to support the latest version of the bill in November 2012 and the BBA Council again approved the bill in February 2013.  The MBA and WBA also support the bill.

Here and Now

The bill was filed in the Senate in January 2013 by Senator Cynthia Creem and referred to the Joint Committee on Judiciary shortly thereafter.  Following an extension order filed in March, and a public hearing in April, at which Deb Manus testified on behalf of the BBA, the bill was reported favorably out of the Joint Committee on Judiciary in late June.  It was then referred to the Senate Committee on Ways and Means, where it currently sits.

We have been working and will continue to work with the other organizations interested in the bill – both in support and opposition – to pursue consensus.  We hope that this bill will garner enough support to pass in the last month left of formal session, but we recognize the hurdles it faces.  As you can see, this is a long and complex process, and the spousal elective share bill is only one example of many bills the BBA is working on.  We will keep you posted on the latest developments with this and all of our bills of interest.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Statehouse Update

It’s been quite a busy week at the Statehouse and we’ve been there through it all – committee hearings, legislation, and the release of the House Ways & Means budget.  The Judiciary Committee resumed its work with back-to-back meetings on Tuesday and Wednesday covering probate issues — domestic relations and custody on day 1 and trusts and estates issues on day 2.  Despite lacking a House chair, the hearings were aptly run by Senator William Brownsberger and House Vice Chair Christopher M. Markey.  Representatives from the BBA testified at both meetings in front of packed hearing rooms.

ImageAt the April 8th hearing, the Family Law Section had a number of bills of interest and Brad Bedingfield spoke on H1
, a bill to amend the adopted children’s law.  The change is related to a case for which the BBA filed an amicus brief, Rachel A. Bird Anderson v. BNY Mellon, N.A., et al.  This case concerned whether adopted children had the same rights as biological children to inheritance under wills written before 1958.  The brief urged the SJC to clarify the applicable estate planning laws after a dispute arose due to the retroactive application of amendments to a 1958 law.  The court held that 1958 law applied, avoiding radical change and affirming practitioners’ expectations.  Bedingfield testified in support of the bill, which further clarifies applicability of the later adopted amendments.  Legislative action would help to avoid confusion and possible litigation related to the Bird decision.

On the April 9th, a panel led by BBA Council member Deborah J. Manus testified on S705, a bill which would revise the current spousal elective share law.  She noted that current law can produce strange and seemingly random outcomes that are often unfair.  For example, Manus noted the new bill would help avoid gamesmanship such as ordering monetary transfers from one’s deathbed in order to disinherit a spouse.  The bill, which is presented after 8 years of study by the BBA, MBA, and WBA, proposes to bring this portion of the law in line with the Uniform Probate Code.  Most of Massachusetts and other states’ probate laws are already aligned with these uniform laws.

Image We will continue to track these bills as they move through the legislative process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association