What happens to your kids if you die without a will in Massachusetts? It is a hard topic, yet their well-being and stability depend on what you set up now. At Jordan & White, LLC, we have served Massachusetts families with estate planning, real estate, and probate since 2011, with roots that stretch back to 1938.
In this article, we explain what intestacy means for your children and their inheritance under Massachusetts law. This content is educational, not legal advice, and your facts matter a lot, so talk with a qualified attorney about your situation.
Massachusetts Intestacy Law: An Overview
Dying without a will places your estate under the intestacy rules in Massachusetts, found in M.G.L. ch. 190B. The statute sets a strict priority list based on legal family ties, and the results often differ from what a parent would want.
Only assets that pass through probate are affected by intestacy. Property with beneficiary designations or rights of survivorship follows those instructions instead of the statute.
Common non-probate assets include the following, which usually transfer outside intestacy rules:
- Accounts or policies with named devisees, such as life insurance, IRAs, and 401(k)s
- Property held in a living trust
- Jointly owned real estate with rights of survivorship or tenancy by the entirety
- Payable-on-death or transfer-on-death accounts
If a devisee has died and no alternate is listed, those assets can fall back into the probate estate and then follow intestacy.
How Massachusetts Intestacy Laws Affect Your Children
Your children’s share depends on whether you have a spouse at death and whether either of you has children from other relationships.
If You Are Married
If all of your children are also the children of your surviving spouse, and your spouse has no children from another relationship, your spouse can receive the entire probate estate. That often surprises parents who thought their children would automatically get a share at the first death.
If you have children from a prior relationship, your spouse receives the first $100,000 plus one-half of the remaining probate estate, and your descendants take the rest, per M.G.L. ch. 190B, § 2-102. The same split applies where all children are shared, yet your spouse has children from a different relationship.
Example. Your probate estate equals $600,000. You leave a spouse and two children from a prior relationship. Your spouse receives $100,000 plus one-half of the remaining $500,000, which is $250,000, for a total of $350,000. Your children share the remaining $250,000 in equal parts.
The rules can feel technical, so a quick visual helps put the basics in one place.
Table: Quick Guide to Common Massachusetts Intestacy Shares
| Family Situation | Who Receives Probate Assets |
| Spouse, no descendants, no parents | Spouse inherits everything |
| Spouse, all descendants are shared, and the spouse has no other descendants | Spouse inherits everything |
| Spouse, shared descendants, and spouse have descendants from another relationship | Spouse gets $100,000 plus one-half of the balance. Descendants split the rest |
| Spouse, and you have descendants from a prior relationship | Spouse gets $100,000 plus one-half of the balance. Your descendants split the rest |
| Spouse, no descendants, but a living parent | Spouse gets $200,000 plus three-quarters of the balance. Parent receives the remainder |
| No spouse, children living | Children inherit everything in equal shares |
This table only covers common patterns under M.G.L. ch. 190B, §§ 2-102 and 2-103, and it applies to the probate estate, not non-probate assets.
If You Are Unmarried
If you die single, your children receive your entire probate estate in equal shares. If a child died before you, that child’s descendants, your grandchildren, step into your child’s place for their portion.
That rule, called representation, keeps each family branch on equal footing under the statute.
Guardianship of Minor Children
If you never named a guardian in a will, the probate court picks the person who will raise your minor children. The judge must choose based on the best interests of the child, which can lead to a result you would not have selected.
By naming a guardian in a valid will, you put your choice on record and greatly reduce conflict among relatives. This single step often does more for a child’s daily life than any dollar amount.
Specific Situations and Considerations
Some family structures raise questions about who counts as a child for inheritance. Massachusetts law answers many of these directly.
Adopted Children
Legally adopted children inherit the same rights as biological children under M.G.L. ch. 190B, § 2-114. No extra steps are required for the adopted child to take a share.
Adoption creates the parent-child relationship for intestacy purposes under the code.
Foster Children and Stepchildren
Foster children and stepchildren do not inherit under intestacy unless legally adopted. Without adoption, they are not treated as legal descendants under the statute.
A will or trust can change that outcome by naming them directly.
Children Born Outside of Marriage
Children born outside of marriage can inherit if paternity is acknowledged or established as allowed by Massachusetts law, see M.G.L. ch. 190B, § 2-114. A signed acknowledgment or a court finding often resolves this question.
Where paternity is in dispute, the court will need evidence before the child can take a share.
Posthumous Children
Children conceived before death but born after inherit as long as they survive for 120 hours, per M.G.L. ch. 190B, § 2-108. The statute treats them as if they were born during your lifetime.
That timing rule helps keep distributions consistent across the family.
Potential Problems with Intestacy
An intestate estate can work in a pinch, yet it often creates outcomes parents would not choose. A few pain points come up again and again.
Unintended Distribution of Assets
Intestacy ignores long-term partners, friends you call family, and charities you care about. It follows the statute, not your story.
Here are common surprises families face without a will:
- A partner you never married receives nothing
- A child from a prior relationship gets less than you pictured, or is left waiting
- An estranged relative inherits a share due to the family tree
Clear instructions in a will or trust help avoid these outcomes and reduce friction among relatives.
Court Involvement and Costs
The probate court appoints a Personal Representative to manage an intestate estate. That person must inventory assets, pay valid debts, and distribute what is left under the statute.
More court oversight often means more time and higher costs than a plan that names trusted decision-makers in advance. Delays also keep funds from children who need support now.
Even where the family gets along, the process can feel public and tiring during a hard season.
Escheat to the Commonwealth
If no eligible heirs exist, your probate assets can escheat to the Commonwealth of Massachusetts. That means the state keeps the property.
This is rare, yet it does happen when no relatives can be found and no plan is in place.
Benefits of Having a Will
A will puts you in charge of who receives property, who runs the estate, and who cares for the kids. It also adds clarity when tensions rise or facts get messy.
Main benefits of a will include:
- Stating who should inherit your property and in what shares
- Naming a guardian for your minor children
- Appointing a trusted executor, called a Personal Representative in Massachusetts
- Directing particular assets to people, charities, or causes that matter to you
- Helping your family avoid delays and reduce the chance of disputes
Many families also add a revocable living trust to keep assets out of probate, protect privacy, and give a smoother handoff to the next generation.
Protect Your Children’s Future: Contact Jordan & White, LLC Today
We build plans that reflect your values and protect your family, drawing on 13 years of service and a lineage that reaches back to 1938. If you want to create or update your will, trusts, or guardianship choices, we are ready to help and answer questions.
Reach us at 978-744-2811 or connect through our Contact Us page. We welcome your questions and work hard for the best results for your family, both now and after you are gone.