Posts Tagged: trusts and estates

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  This bill has been replaced by a new bill which is similar, though not identical to the Uniform Probate Code’s spousal elective share provision.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

2012 Public Policy by the Numbers

2012 was a productive year for the BBA, and Issue Spot would like to look back on the numbers.

2 Amicus Briefs – The BBA filed amicus briefs in Rachel A. Bird Anderson v. BNY Mellon, N.A. trustee and others and Fisher v. University of Texas at Austin.  The SJC referenced the BBA’s Bird brief in its decision this summer.  The BBA recruited 38 law firms, companies and organizations to join our Fisher brief and was one of 71 amici to file briefs in the high profile case.

2 Court Standing Orders – The Boston Municipal Court made permanent a Criminal Offender Record Information (CORI) sealing order and the Supreme Judicial Court instituted a pro hac vice admission fee which yielded $49,000 in the first quarter it was collected. Both standing orders were endorsed by the BBA.

7 Laws Took Effect – Seven pieces of legislation the BBA supported took effect in 2012.

 700 Attorneys Attended Walk to the Hill – Lawyers from across Massachusetts filled the State House for the 13th annual Walk to the Hill for Civil Legal Aid.  More than 50 law firms and organizations were represented.

100+ Lawyers Attended Court Advocacy Day – More than 100 attorneys trekked to the State House to show support for adequate court funding.

2012 was a successful year and we are committed to topping these numbers for 2013.  We still have unfinished business in the Massachusetts Legislature. There are also emerging federal issues we are preparing to tackle.  But as 2012 wraps up, we have much to celebrate.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

Bird Decision is Another Victory for T&E Attorneys

Tuesday’s  SJC decision in Rachel A. Bird Anderson vs. BNY Mellon, N.A. trustee and others, helped reinforce our belief that there’s no one tool for achieving public policy goals. When we failed to secure the passage of legislation that would repeal an overly broad 2009 amendment to the adopted children statute yielding unintended consequences, we turned our energies to an amicus brief. Our brief identified the confusion resulting from the 2009 amendment; in its decision in Bird, the SJC provided essential clarification.

It’s rewarding to read the SJC’s decision on many levels.  It settles a family dispute, provides trustees with much needed assurances and also means that the BBA won’t need to re-file legislation we’ve supported since 2009.  The BBA’s bill, An Act to Repeal the Adopted Children Statute, was drafted as a statutory fix to the problem that the Bird decision just solved.

When this issue was first brought to our attention, the BBA worked quickly to file legislation that would repeal language that had broad and far reaching implications on trust instruments dealing with adopted children.  As we described in Issue Spot, the BBA succeeded in obtaining a one year postponement of the original effective date of this new law and has been working since then to repeal it.

This past legislative session, the BBA’s repeal of the adopted children statute became part of a number of pieces of legislation to address various trusts and estate problems.  These bills included a proposed Massachusetts Uniform Trust Code (MUTC), technical corrections to the Massachusetts Uniform Probate Code (MUPC), and an estate tax patch.  Now that the SJC has weighed in on the adopted children statute, we can claim victory for all but a small portion of our trusts and estates agenda. Earlier this summer Issue Spot reported on the passage of the MUTC and technical corrections to the MUPC.

Our success is particularly gratifying because it can be difficult to catch the attention of the Legislature on trusts and estates matters.  They aren’t splashy or as headline grabbing as, say, casinos or health care reform. Our dedicated and highly knowledgeable members deserve the credit for volunteering their time to testify, meet with legislators and draft impeccable amicus briefs. We will next focus our trusts and estates energies on the estate tax patch and any other emerging issues in this area.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association