Updated September 5, 2026. Quick answer: Massachusetts’s elective share is not the one-third-of-everything, marriage-length figure most national pages describe. if decedent left issue: 1/3 of personal and 1/3 of real property outright. If kindred but no issue: $25,000 plus 1/2 of the remaining personal and real property, but only the $25,000 is outright; any excess is a life-income interest only. If no issue and no kindred: $25,000 plus 1/2 of the remainder, taken absolutely.
What Massachusetts actually sets out
| What the statute sets out | What it says |
|---|---|
| Mass. Gen. Laws ch. 191, Sec. 15 | “he or she shall thereupon take one third of the personal and one third of the real property; and if the deceased left kindred but no issue, he or she shall take twenty-five thousand dollars and one half of the remaining personal and one half of the remaining real property; except that in either case if he or she would thus take real and personal property to an amount exceeding twenty-five thousand dollars in value, he or she shall receive, in addition to that amount, only the income during his or her life of the excess of his or her share of such estate above that amount, the personal property to be held in trust and the real property vested in him or her for life, from the death of the deceased.” |
| The share and what it is measured against | if decedent left issue: 1/3 of personal and 1/3 of real property outright. If kindred but no issue: $25,000 plus 1/2 of the remaining personal and real property, but only the $25,000 is outright; any excess is a life-income interest only. If no issue and no kindred: $25,000 plus 1/2 of the remainder, taken absolutely; measured against probate estate only; no augmented-estate/non-probate-transfer inclusion (a widely noted gap). |
| Regime type | fixed amounts that vary by which relatives survive |
| Can it be waived | prenuptial (antenuptial) agreements are expressly authorized by ch. 209, Sec. 25-26 and commonly used to waive these rights; postnuptial agreements are also enforceable, but through case law (Ansin v. Craven-Ansin, 2010), not this statute |
| Time limit to file | within 6 months after probate of the will, extendable up to 6 additional months if a will contest is pending |
How it works in practice
- The share is measured against probate estate only; no augmented-estate/non-probate-transfer inclusion (a widely noted gap).
- Partially. This state’s formula is limited to the property described above, which does not reach a properly funded revocable trust the same way an augmented-estate state’s formula does, so trust planning can change the outcome here specifically, though it does not change the analysis in a state with an augmented-estate formula.
- Waiver: Prenuptial (antenuptial) agreements are expressly authorized by Mass. Gen. Laws ch. 209, Sec. 25-26 and commonly used to waive these rights; postnuptial agreements are also enforceable in Massachusetts, but through case law (Ansin v. Craven-Ansin, 457 Mass. 283 (2010)), not this statute.
- The election has to be affirmatively filed on a deadline: within 6 months after probate of the will, extendable up to 6 additional months if a will contest is pending.
The national picture, including the Uniform Probate Code sliding-scale schedule that a minority of states actually use, is on the elective share calculator page; this page is the record for Massachusetts specifically, and its own numbers above should be used instead of the calculator’s national default for a Massachusetts estate. The one thing that reliably defeats an elective share in every state that has one is explained on whether a prenup can waive the elective share. A newly widowed reader working through the fuller list of irreversible decisions, of which this is one, can start from the surviving spouse checklist.
What this page does not settle
- This citation and figure were fetched directly from the state’s own official code site and read against the current text this session.
- A state can amend or repeal this section without the page around it changing, and a detail specific to a reader’s own situation, such as a pending divorce, a premarital agreement, or property held jointly with right of survivorship, can change which part of the statute actually applies.
- Whether a revocable trust changes the outcome in Massachusetts is explained above; that answer is specific to this state and does not generalize to any other one.
- Every quotation here was read against the source on September 5, 2026. Nothing on this page is legal advice, and the exact dollar or percentage amount a court awards depends on facts this page cannot know.
Whether this statute reaches a given family’s actual facts is decided by a court, not by this page. Nothing here is legal advice, and no one should sign a waiver or forgo an election on the strength of a web page.
Sources
The sources above were retrieved and read against the state text on September 5, 2026. Every quotation on this page was checked against those bytes.