Understanding Your Rights as a Surviving Spouse in Massachusetts When There Is No Will

This article explains, in plain language, what rights a surviving spouse has under Massachusetts law when a spouse dies without a will (intestate) and the deceased spouse’s family is excluding the surviving spouse from decisions. This is general information, not legal advice. If you need help enforcing your rights, consult a Massachusetts probate attorney or contact the Probate & Family Court listed below.

Quick overview

When someone dies without a will in Massachusetts, the state’s intestacy rules determine who inherits and who can handle the estate. As a surviving spouse you typically have priority: you are often the person entitled to inherit and the person the court will prefer to appoint as the personal representative (the person who manages the estate). If family members are cutting you out, you can ask the Probate & Family Court to recognize your legal rights and to appoint you to manage the estate.

Detailed answer — what your legal rights usually include

1. Priority under Massachusetts intestacy rules

Massachusetts follows statutory intestacy rules. These rules identify who inherits when there is no will and how the estate is divided among the spouse, children, and other relatives. See the Massachusetts intestacy provisions at
M.G.L. c.190B §2-102 and
§2-103.

Key points (general rules):

If the decedent is survived only by a spouse (no children or parents), the spouse usually receives the entire estate.
If there are children who are also children of the surviving spouse, the spouse commonly inherits most or all of the estate.
If there are children who are not children of the surviving spouse, the spouse’s share is typically reduced and the decedent’s other children share the remainder under the statute.

These are statutory formulas; the exact distribution depends on who survived the decedent.

2. Right to be appointed personal representative (estate administrator)

The court oversees formal administration of estates. A personal representative (executor or administrator) has the legal authority to collect assets, pay debts, and distribute property according to the law. The Probate & Family Court will consider the surviving spouse a high-priority candidate for appointment. See the rules on appointment of a personal representative at
M.G.L. c.190B §3-201.

If family members are acting without legal authority, you can petition the Probate & Family Court to appoint you as the personal representative. Once appointed, you gain the legal power to make estate decisions and to protect estate property from improper handling.

3. Rights during estate administration

While the estate is being administered, the personal representative (or the court if no representative is appointed) controls estate assets and decisions. As a surviving spouse you also have access to certain protections intended for immediate family members, such as:

Family allowance and support during administration (statutory allowances intended to provide for the surviving spouse and dependent children) — see M.G.L. c.190B §3-403.
Exempt property and homestead protections under Massachusetts law that can protect certain property for the surviving spouse.

4. Decisions about funeral and disposition of remains

Typically, the closest next of kin (often the surviving spouse) has the legal authority to make funeral and disposition decisions. If others try to force a different decision, you can ask the court to confirm your right. If immediate action is needed (e.g., burial or cremation), contact the funeral home and explain you are the surviving spouse; document your communications and preserve receipts and written statements.

5. What to do if the family is excluding you

If family members are making decisions or controlling property without legal authority, you have several common remedies:

File a petition with the Probate & Family Court to be appointed personal representative or to challenge an improper appointment.
Ask the court for temporary or emergency relief to prevent dissipation or sale of assets.
File for an accounting or move to remove a personal representative who is mismanaging the estate.
Pursue civil claims such as conversion (wrongful taking), interference with inheritance, or other remedies if property has been taken or concealed.

A court order is enforceable; ignoring it can lead to contempt charges or other sanctions.

Practical steps you can take now

Gather documents: marriage certificate, spouse’s death certificate, any bank statements, titles, deeds, insurance policies, and lists of assets and debts.
Contact the local Probate & Family Court to ask how to file a petition for appointment as personal representative (you can use the court website and clerk’s office for forms and filing instructions). See Massachusetts Probate & Family Court.
Get copies of the death certificate (several) — banks and other institutions will require them.
Document instances where family members excluded you or interfered with assets (dates, times, witnesses, and communications).
If you fear interference with burial, contact the funeral home and, if needed, file an emergency petition with the probate court to preserve the decedent’s remains and property.
Consider hiring an experienced probate attorney to file petitions and represent you in court (especially if the estate is contested or complex).

When to get a lawyer

Consider hiring a lawyer if family members:

are refusing to provide information about assets or are hiding property;
have taken property or are about to sell estate assets;
are preventing you from making funeral arrangements;
are pressuring you to sign documents; or
disputes are likely to lead to court litigation.

An attorney can prepare and file the necessary probate petitions, ask for emergency court orders, and protect your legal and financial interests.

Helpful Hints

Act quickly. Probate deadlines and the risk of asset loss make prompt action important.
Get multiple certified death certificates early; institutions will ask for them.
Keep written records of interactions with family members and institutions.
Do not sign anything without reading it or getting legal advice if you suspect it affects estate rights.
Use the Probate & Family Court clerk’s office as a resource for forms and filing steps: Massachusetts Probate & Family Court.
If someone is removing or transferring property, photograph the property and preserve titles or documents when possible.
Mediation can sometimes resolve family disputes faster and less expensively than litigation. Ask a lawyer about alternative dispute resolution options.

Key Massachusetts statutory resources

Intestacy rules: M.G.L. c.190B §2-102 and §2-103.
Appointment of personal representative: M.G.L. c.190B §3-201.
Family allowance and related protections: M.G.L. c.190B §3-403.
Massachusetts Probate & Family Court information and local court contacts: https://www.mass.gov/orgs/probate-and-family-court.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. It is not a substitute for consulting a Massachusetts-licensed attorney who can evaluate your specific situation and represent you in court.