Massachusetts is one of a small number of states that still imposes its own estate tax, and its threshold is among the lowest in the nation. A Massachusetts family whose assets total well under the federal exemption can still owe a six-figure state estate tax — and because the Commonwealth does not allow portability between spouses, a married couple can lose an entire $2,000,000 exclusion simply by drafting their documents the way most people assume they should be drafted.
That single fact drives most Massachusetts estate planning. Add a probate system governed by the Massachusetts Uniform Probate Code, a homestead statute that protects far more than most states, the absence of transfer on death deeds, and MassHealth’s aggressive approach to long-term care recovery, and it becomes clear why a plan drafted anywhere else rarely works here.
The Holmes Law helps Massachusetts residents — and out-of-state owners of Massachusetts real estate — build plans that address the state estate tax, avoid probate where it makes sense, protect the surviving spouse, and put decision-making authority in the right hands.
The Massachusetts Estate Tax
The Massachusetts estate tax applies to the estate of every Massachusetts resident, and to Massachusetts real estate and tangible personal property owned by nonresidents. The exclusion amount is $2,000,000, and it is not indexed for inflation — it does not rise with the cost of living, so each year of appreciation pulls more families over the line without any change in the law.
The 2023 reform legislation made an important structural change. The old law had a genuine “cliff”: an estate one dollar over the threshold was taxed on its entire value from the first dollar. The Commonwealth replaced that with a credit of up to $99,600, which is the amount of tax that would otherwise be due on the first $2,000,000. The effect is that only value above $2,000,000 is effectively taxed. That is a meaningful improvement, but it is not an exemption from the filing obligation and it is not a large amount of relief for a substantial estate.
Two points are routinely missed. First, the Massachusetts gross estate is broad — it includes the full death benefit of life insurance you own, the balance of retirement accounts, the entire value of jointly held real estate in many circumstances, and the value of a home that has appreciated for forty years. A retired couple in a paid-off house with a pension rollover and a term life policy can easily be over $2,000,000 without ever having thought of themselves as wealthy. Second, Massachusetts has no gift tax, but adjusted taxable gifts are added back for purposes of determining whether the filing threshold is met. Lifetime gifting can reduce the taxable estate, but it does not simply erase itself from the calculation.
The Massachusetts QTIP Election
Massachusetts permits a state-only QTIP election under G.L. c. 65C, § 3A. This allows a Massachusetts estate to qualify property for the marital deduction at the state level independently of what was elected federally — an essential tool for coordinating a plan when the federal exemption is many times the state exclusion. Getting the election right requires a timely filed Massachusetts estate tax return and drafting that anticipates it.
No Portability: Why Married Couples Need Trust Planning
Under federal law, a surviving spouse can elect to carry over the deceased spouse’s unused exclusion. Massachusetts has no equivalent. If the first spouse to die leaves everything outright to the survivor, that spouse’s $2,000,000 Massachusetts exclusion is simply gone.
Consider a couple with $3,500,000 in combined assets. If everything passes outright to the survivor and then to the children, the second estate is taxed on the value above a single $2,000,000 exclusion. If instead the first spouse’s share funds a credit shelter trust — a bypass trust that supports the surviving spouse for life but is not included in the survivor’s taxable estate — the couple preserves both exclusions and can shelter up to $4,000,000. The tax difference is often well into six figures.
The credit shelter trust only works if assets are actually available to fund it, which means the couple’s assets must be divided between them rather than held entirely in joint names. This is the most common defect in Massachusetts plans: excellent trust documents paired with joint title on every account, so that everything passes by survivorship and the bypass trust is never funded. Reviewing and correcting title is as important as the drafting itself.
Probate Under the Massachusetts Uniform Probate Code
Massachusetts probate is governed by the MUPC, G.L. c. 190B. It provides three main tracks:
- Informal probate — handled by a magistrate without a hearing, appropriate when the will is uncontested, the original is available, and all interested parties can be identified and given notice.
- Formal probate — required when there is a dispute, a missing or copied will, an unknown heir, a minor or incapacitated interested party, or a need for a judicial determination.
- Voluntary administration — a simplified filing available where the estate consists of personal property valued at no more than $25,000 (excluding one motor vehicle) and there is no real estate.
The MUPC also imposes a hard deadline that catches families off guard: under § 3-108, a probate proceeding generally must be commenced within three years of the date of death. Miss it, and the options narrow considerably — a late and limited proceeding may be available, but the straightforward path is closed. Families who postpone dealing with a parent’s house until “things settle down” sometimes discover this only when they try to sell.
Massachusetts Does Not Allow Transfer on Death Deeds
Roughly two-thirds of states now authorize a beneficiary or transfer on death deed for real property. Massachusetts is not among them. There is no way to record a deed that leaves your home to your children effective at your death while you retain full ownership in the meantime.
The alternatives each carry consequences. Adding a child to the deed as a joint tenant avoids probate but makes a completed gift, exposes the property to the child’s creditors and divorce, forfeits part of the step-up in basis, and can be a disqualifying transfer for MassHealth purposes. A life estate deed avoids probate and preserves a step-up, but it is difficult to undo and limits the ability to sell or mortgage. A revocable living trust avoids probate, remains fully amendable, keeps the transfer private, and coordinates with the estate tax plan — which is why it is the usual answer for Massachusetts real estate.
The Massachusetts Homestead
Massachusetts offers unusually strong homestead protection under G.L. c. 188. Every owner-occupant receives an automatic homestead of $125,000 with no filing required. By recording a declared homestead at the registry of deeds, an owner increases that protection to $1,000,000. Owners who are 62 or older, or who are disabled, may each declare their own homestead, which can multiply the protection for a couple.
Recording a declaration costs a modest filing fee and takes minutes. It is one of the highest-value, lowest-cost steps available to a Massachusetts homeowner, and a substantial number of homeowners have never done it. Note that the homestead protects against most unsecured creditors — it does not defeat a mortgage, tax liens, or certain support obligations, and its interaction with a trust requires attention so the protection is not inadvertently lost when the property is transferred.
The Core Massachusetts Estate Plan
Revocable Living Trust
In Massachusetts the trust does double duty: it avoids probate on the assets it holds, and it is the vehicle that preserves the first spouse’s estate tax exclusion through a credit shelter or disclaimer structure. Massachusetts trusts are governed by the Massachusetts Uniform Trust Code, G.L. c. 203E, which sets out trustee duties, beneficiary rights, and modern rules for modifying or terminating a trust when circumstances change.
Will and Guardian Nomination
The will pours over any unfunded asset into the trust, names a personal representative, and nominates guardians for minor children. Massachusetts does not recognize holographic wills; a valid Massachusetts will must be in writing, signed by the testator, and witnessed by two competent witnesses.
Durable Power of Attorney
Massachusetts has not adopted the Uniform Power of Attorney Act, so the document’s effectiveness depends heavily on its drafting and on the willingness of financial institutions to accept it. A well-drafted Massachusetts durable power of attorney should be specific about real estate, trust funding, gifting, and MassHealth planning authority. Without one, the family’s remedy is a conservatorship petition in the Probate and Family Court.
Health Care Proxy and HIPAA Authorization
Massachusetts uses a health care proxy under G.L. c. 201D to appoint an agent for medical decisions. Notably, Massachusetts has no living will statute — a written statement of treatment preferences is evidence of your wishes and is respected in practice, but it is not independently binding the way it is in many states. That makes the choice of health care agent especially important, and makes a clear conversation with that agent part of the planning work. A MOLST form may be appropriate for someone with a serious advanced illness.
The Massachusetts Elective Share
Massachusetts has one of the most unusual — and most criticized — spousal protection statutes in the country. Under G.L. c. 191, § 15, a surviving spouse who waives the will may claim a share of the estate, but where there are issue, the spouse’s outright entitlement is capped at $25,000, with the balance of the share held in trust for life with only the income payable to the spouse.
The statute reaches only the probate estate, so assets in a revocable trust, joint accounts, and beneficiary-designated property fall outside it. The practical consequences run both ways: a surviving spouse who was disinherited may have far less recourse than expected, and a spouse in a second marriage who assumes the law will protect them may be badly mistaken. Prenuptial and postnuptial agreements, properly executed, are frequently the right answer in blended-family situations.
MassHealth and Long-Term Care Planning
Nursing home care in Massachusetts is among the most expensive in the country, and MassHealth is the payer of last resort for most long-term care. Eligibility involves a five-year lookback on transfers, strict countable-asset limits, spousal impoverishment rules that protect a community spouse, and estate recovery against the recipient’s estate after death.
A revocable living trust provides no MassHealth protection whatsoever — its assets are fully countable. Protecting the home typically requires an irrevocable trust established well before care is needed, and MassHealth scrutinizes these arrangements closely. The reliable planning window is measured in years, not months, which is why long-term care should be part of the conversation while everyone is healthy.
Nonresidents Who Own Massachusetts Real Estate
A person who lives elsewhere but owns a house on the Cape, a condominium in Boston, or a share of a family property in the Berkshires has Massachusetts estate tax exposure on that property, and their family may face an ancillary Massachusetts probate. The Commonwealth’s method of apportioning the tax for nonresident estates changed for deaths occurring on or after August 1, 2025, so older analyses may no longer produce the right answer.
Holding Massachusetts real property in a trust or an appropriately structured entity can eliminate the ancillary probate and may affect the tax analysis. This is worth reviewing before the property passes, not after.
Marital Agreements and Your Massachusetts Estate Plan
Because Massachusetts is a separate property state, property generally belongs to the spouse who holds title, and an estate plan has to be built around that rather than around a community property split. Where spouses have unequal assets, a family business, or children from an earlier marriage, a marital agreement can fix in advance what each spouse keeps, what the survivor receives, and whether the statutory elective share is waived — questions a will alone cannot settle. See Massachusetts prenuptial and postnuptial agreements for how these are drafted and what makes them enforceable here.
Frequently Asked Questions About Massachusetts Estate Planning
Does my estate owe Massachusetts estate tax?
A Massachusetts estate tax return is required when the gross estate, plus adjusted taxable gifts, meets or exceeds $2,000,000. A credit of up to $99,600 offsets the tax attributable to the first $2,000,000, so tax is effectively owed only on value above that amount.
Can my spouse use my unused Massachusetts exclusion?
No. Massachusetts does not allow portability. Preserving both spouses’ exclusions requires a credit shelter or disclaimer trust structure, funded with assets titled so that the first spouse’s share is actually available.
Can I leave my Massachusetts home to my children with a deed that takes effect at death?
Not directly — Massachusetts does not permit transfer on death deeds. A revocable trust, and in some circumstances a life estate deed, are the available alternatives, each with different tax and MassHealth consequences.
Should I record a declaration of homestead?
For most Massachusetts owner-occupants, yes. It raises creditor protection from the automatic $125,000 to $1,000,000 for a nominal recording fee. Coordinate the filing with any transfer of the property into a trust.
Is there a deadline to open probate in Massachusetts?
Generally three years from the date of death under G.L. c. 190B, § 3-108. Families should not let a decedent’s real estate sit unaddressed past that point.
Speak With a Massachusetts Estate Planning Attorney
Massachusetts rewards planning that is done deliberately and punishes plans imported from elsewhere. The Holmes Law assists Massachusetts clients with revocable and irrevocable trusts, credit shelter and disclaimer planning, wills, durable powers of attorney, health care proxies, homestead declarations, trust funding, MassHealth planning, and estate and trust administration.
To discuss your Massachusetts estate plan, contact the office to arrange a consultation. You may also want to review our page on Massachusetts elder law.