Income Tax

Massachusetts imposes an income tax for residents. A resident earning more than USD8,000 a year is required to file an income tax return. For the 2025 tax year, Massachusetts imposed a 5% tax on earned and unearned income. In addition, Massachusetts General Law chapter 62, Section 4(d) (MGL c 62 4(d)) states that any resident whose income is more than USD1 million annually will be subject to an additional 4% tax on income exceeding that amount. The figure is indexed annually for inflation and for 2026 will be USD1,107,750.

Estate Tax

The Massachusetts estate tax applies to any decedent who at death was either a Massachusetts resident or a non-resident who owned an interest in real property and/or tangible personal property located in Massachusetts (MGL c 65C).

It applies to the gross estate of resident decedents (except for certain interests in real property and tangible personal property that are located outside of Massachusetts) and the real property and tangible personal property physically located in Massachusetts but owned by non-resident decedents.

For deaths on or after 1 August 2025, Massachusetts changes its estate tax calculation so that a resident’s out of state real and tangible personal property is removed from the Massachusetts tax base for the state estate tax computation and Massachusetts qualified terminable interest property (QTIP) not otherwise in the federal gross estate is added back in.

For decedents resident in Massachusetts dying on or after 1 January 2023, an estate tax return must be filed for an estate with a value of USD2 million or more (MGL c 65C, Section 2A(g)). For decedents dying between 1 January 2006 and 31 December 2022, an estate tax return was required to be filed for estates with a value of USD1 million (the then filing threshold) or more.

The progressive Massachusetts estate tax rate is graduated, beginning at 0.8% and topping out at 16%.

Foreign death taxes

There is no credit for the payment of foreign death taxes.

The Massachusetts estate tax applies to the gross estate of resident decedents, except for certain interests in real and tangible personal property that are located outside of Massachusetts and the real property and tangible property (such as furniture, cars and art) physically located in Massachusetts but owned by non-resident decedents. See 1.5 Taxation of Real Estate Owned by Non-Residents.

Domicile for estate tax purposes

A decedent is resident in Massachusetts if domiciled in Massachusetts at death.

Domicile is different for estate taxes than for income taxes. Domicile for estate tax purposes is where a person’s true, fixed and permanent home is, and it is where the decedent resided with an intention to remain permanently or indefinitely and without any specific purpose to return to a former residence. Domicile for estate tax purposes is determined by common law and the facts of each case.

Portability between spouses

Massachusetts does not recognise portability between spouses.

Massachusetts recognises the unlimited marital deduction for a decedent who was married to a US citizen and allows a state-only QTIP election. Different elections for federal and Massachusetts QTIPs are common.

Charitable deductions

Massachusetts follows the federal estate tax law for charitable deductions.

Qualified Family-Owned Business Interest (QFOBI) deduction

The Qualified Family-Owned Business Interest (QFOBI) deduction was repealed for federal purposes in 2004; however, it is still permitted in Massachusetts. The amount of the elected QFOBI deduction cannot exceed the lesser of the adjusted value of the qualified family-owned business interests of the decedent otherwise includable in the gross estate or USD675,000.

Inheritance tax, gift tax or generation-skipping transfer tax

Massachusetts does not have an inheritance tax, gift tax or generation-skipping transfer tax.

Land bank fees

Unique to Massachusetts, the sale or transfer of real estate located in Nantucket, Martha’s Vineyard and certain towns on Cape Cod are subject to land bank fees, typically 2%. This is in addition to any conveyance or excise tax. The buyer is responsible for the land bank tax.

Massachusetts Estate Tax Filing Threshold.

Massachusetts does not have a gift tax. The Massachusetts exemption is not tied to the federal exemption. Massachusetts currently has a USD2 million filing threshold for individuals dying after 1 January 2023. A credit of up to USD99,600 is applied. The application of this credit eliminates the Massachusetts estate tax on up to USD2 million of the Massachusetts taxable estate. There is no portability election available. Therefore, planning must be done to utilise each spouse’s Massachusetts estate tax exemption (currently USD2 million). This is done through funding trusts during a person’s lifetime with the Massachusetts exemption amount, or postmortem by disclaimer to the trust, or outright.

Massachusetts income tax planning generally focuses on the timing and character of income, residency and domicile, Massachusetts source income, the additional 4% surtax applicable above the indexed threshold and basis planning. Estate planners should also consider the interaction between lifetime gifting and the basis adjustment available for assets included in a decedent’s estate under Internal Revenue Code (IRC) Section 1014.

Immigration status is federal. Massachusetts focuses on residence, domicile and source of income. A foreign national can therefore be subject to Massachusetts income tax without becoming a US citizen or federal domiciliary for transfer tax purposes.

Massachusetts treats an individual as a resident if the individual is domiciled in Massachusetts, or maintains a permanent place of abode there and spends more than 183 days in Massachusetts during the taxable year. A part-year resident is taxed as a resident during the portion of the year in which Massachusetts residency applies. Even after departure from Massachusetts, Massachusetts source income remains taxable. In 2026, the surtax is on income above USD1,107,750. Because domicile is highly fact-dependent and the taxpayer bears the burden of establishing a change in domicile, individuals leaving Massachusetts should carefully document the abandonment of their Massachusetts domicile and the establishment of a new domicile.

Before moving to Massachusetts a taxpayer should consider realising capital gains, receiving bonuses or deferred compensation, structuring ownerships and completed gifts while domiciled elsewhere, subject to federal and former state law. Some compensation can remain Massachusetts source income even when received after the taxpayer leaves Massachusetts. The current Massachusetts non-resident instructions expressly identify certain deferred compensation, separation pay, vacation pay, non-competition income and business sale gains as potentially Massachusetts source income. Before leaving a jurisdiction and moving to Massachusetts, taxpayers should therefore establish a date on which domicile begins and maintain contemporaneous evidence. Before changing domicile from Massachusetts, the taxpayer should understand that Massachusetts Department of Revenue domicile disputes can be extremely intensive. It is important to change the principal home, driver’s licence, tax filings, mailing address, voter’s registration, principal banking/investing relationships, social and religious affiliations, the location of valuable tangible personal property, estate planning documents and professional relationships. It is important to continue to review Massachusetts source income from employment, businesses, partnerships, real estate and tangible personal property because changing residence does not eliminate the tax on Massachusetts source income. The taxpayer should also be cautious about transactions undertaken solely for tax avoidance because the revised non-resident regulations preserve Massachusetts’ existing authority to disregard sham transactions.

A non-resident and a non-citizen are subject to the Massachusetts estate tax for property that has a situs in Massachusetts. This includes real property and tangible personal property. The Massachusetts estate tax is calculated as if the decedent was a resident of Massachusetts, calculating the ratio of the Massachusetts situs real and tangible personal property relative to the entire estate and applying the resulting percentage to the initial Massachusetts estate tax calculated on the entire estate.

For planning purposes, it is common to convert real property to intangible personal property (which is taxed where the decedent is resident) using limited liability companies (LLCs). The future of this planning opportunity is uncertain.

Massachusetts recently changed its estate tax law. There are no significant estate or income tax bills currently proposed.

There are no specific Massachusetts laws on this.

Massachusetts law recognises a broad range of family structures, including same-sex married couples, adoptive families, families formed through assisted reproduction and, under the Massachusetts Parentage Act, certain de facto and intended parents. This Act was recently passed and sets forth many structures to protect same-sex couples and children born using in vitro fertilisation. The law protects families and ensures they receive the same rights and protections under the law regardless of marital status, gender, sexual orientation or circumstances of the birth of the child. See 9.1 Children for further discussion.

Estate plans should use precise definitions of descendants, children and family members rather than relying solely on traditional biological relationships.

Massachusetts imposes an estate tax on property owned by non-residents and non-citizens if the gross estate exceeds the filing threshold. Conversion of real property to an intangible personal property asset such as an LLC may remove that asset from the Massachusetts taxable estate and subject it to taxation in the state or country in which the decedent is resident.

Massachusetts follows federal law and does not recognise a Massachusetts marital deduction for outright transfers to non-citizen spouses. If the spouse receives assets through a qualified domestic trust, however, the marital deduction is allowed.

Massachusetts does not have forced heirship laws.

Equitable Division

Massachusetts is not a community property state. In a divorce, assets are divided “equitably” regardless of whose name is on the asset, meaning the division of assets may not necessarily be equal, but must be fair.

Factors to be considered

MGL c 208 Section 34 sets forth the factors to consider when dividing assets in a divorce: length of marriage, conduct of the parties during marriage, age, health, station, occupation, amount and sources of income, vocational skills and employability, estate, liability and needs, opportunity for future acquisition of capital and income and the amount and duration of alimony, if any is awarded. The court also has the discretion to consider each party’s contribution in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each as a homemaker to the family unit.

It is important to note that in Massachusetts, as an equitable division state, gifts and inheritances (even those in irrevocable trusts) may be considered when dividing assets.

Status of a surviving spouse

From an estate planning point of view, a surviving spouse may not be totally disinherited (MGL c 191, Section 15). Even if a spouse is omitted, that spouse has an elective share, which is a right to waive the provisions of the will and take a statutory share.

To do so, the surviving spouse must file a waiver in the probate court within six months of the filing of the will. Under the current law (MGLA c 191, Section 15), if the decedent left issue (children and grandchildren), the surviving spouse is entitled to USD25,000 and a life interest in a third of the remaining estate. If the decedent did not have issue, but has other relatives, the surviving spouse receives USD25,000 and a life interest in one half of the remaining estate. If the decedent does not have children or relatives, the surviving spouse is entitled to USD25,000 and one half of the remaining estate outright.

Life estate

The current law addressing the issue of life estate is not well drafted. For investments, the spouse will receive interest and dividends. If real estate is rented the income is easy to determine. If real estate is not rented, determining a life interest in it is not straightforward, especially if the spouse and relatives co-own it. The court has ruled that a petition to partition court action can commence to bifurcate the interests, and the spouse can receive the cash value of the life estate interest.

Elective share

Currently, although the elective share statute is framed in terms of the decedent’s estate, Massachusetts case law may bring certain assets held in a revocable trust within the property against which the surviving spouse’s rights are determined. Massachusetts does not yet have an augmented estate that includes other assets against which the election can be made.

There are frequent bills proposed to increase the elective share. None have currently been passed.

Prenuptial and Postnuptial Agreements

Prenuptial and postnuptial agreements are valid in Massachusetts. There is no statute setting forth the rules concerning the validity of a prenuptial or postnuptial agreement. Case law has shown that to be valid, the agreement should be in writing and executed voluntarily between the parties. There is no requirement that both parties retain counsel, but it is wise to do so. Massachusetts has adopted the “second look doctrine”. The agreement must be fair and reasonable at the time it is executed, and fair and reasonable at the time of the divorce. Each party must provide full and fair disclosure of all financial assets (including assets the person is reasonably expected to receive through gifts and inheritances whether outright or in trust). Any provision addressing child support or custody is not valid.

In the absence of a prenuptial agreement or postnuptial agreement, the equitable division rules apply in a divorce and the spousal rights highlighted above pertain in the event of death.

Massachusetts follows 26 USC Section 1014 and affords a stepped-up basis for assets included in the gross estate (with the same two exceptions of assets that are “income in respect of decedent” and assets that are received by the decedent within a year of death) if that property is acquired from the decedent by the donor or by the spouse of the donor. As with federal law, when a lifetime gift is made, the donee takes the donor’s income tax basis.

Because Massachusetts does not have a gift tax or a generation-skipping transfer tax, assets may be gifted outright or in trust during an individual’s lifetime and can therefore be removed from the Massachusetts taxable estate. However, since the Massachusetts estate tax rates are significantly lower than the combined federal and Massachusetts capital gains rates, both the estate (federal and Massachusetts) and income/capital gains rate calculations should be considered prior to making a gift of appreciated assets.

Massachusetts has not yet adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), but a bill has been proposed to establish the Massachusetts Fiduciary Access to Digital Assets Act. This bill provides a framework to address how fiduciaries should access and manage a person’s digital assets in the event of incapacity or death. The Massachusetts Supreme Court, in Ajemian v Yahoo, Inc held that the Stored Communications Act does not prohibit Yahoo from disclosing the contents of a decedent’s email, and that Yahoo is permitted but not required to disclose the email contents to the personal representative of the estate. Individuals may include digital asset clauses within their estate planning documents that specifically address fiduciary access.

Trusts are commonly used in Massachusetts to minimise taxes, avoid probate, manage assets, maintain privacy and confidentiality, control a beneficiary’s access to assets, protect assets and for charitable planning.

Types of Trusts and Foundations

A variety of trusts are typically used for estate planning in Massachusetts, including revocable trusts, irrevocable trusts, special needs trusts, certain self-settled special needs trusts used in public benefits planning, testamentary trusts (used for MassHealth planning), pet trusts, trusts for minors, spousal lifetime access trusts, grantor-retained annuity trusts, qualified personal residence trusts, private foundations and charitable split-interest trusts.

Rules Against Perpetuities

The Massachusetts common law rule against perpetuities provides that an interest in property is not valid unless it must vest no later than 21 years after some life in being at the creation of the interest, or within 90 years after its creation. Massachusetts adopted the Uniform Statutory Rule Against Perpetuities, which applies to property interests and powers created after 30 June 1999.

Decanting of Trusts

The decanting of trusts is increasingly common in Massachusetts. Decanting may be permitted by statute, by the terms of the original trust, or by court-created law. Massachusetts has no general decanting statute; authority to decant derives from the governing instrument and common law. The Supreme Judicial Court has ruled that it is permissible to transfer assets from one trust to another as long as the new trust serves the same purposes as the original trust, and the trustee can act without court approval. The decanting authority does not have to be granted expressly and may be inferred from the entirety of the powers given to the trustee by the settlor. The settlor’s intent is important.

As in other jurisdictions, decanting may be used for many reasons, including to clarify ambiguities or correct errors in the trust, provide protection for changes in beneficiary status, such as special needs, asset protection, merging or separating of trusts, expanding business powers, modifying trustee succession provisions, and adapting to changes in law and tax law. In a recent case, Ferri v Powell-Ferri, the Massachusetts Supreme Judicial Court approved a trust decanting which removed vested withdrawal rights for a beneficiary in an active divorce action (thereby protecting the asset from being a countable marital asset), relying on two key facts – the independent trustees decanted without notifying the beneficiary, and an affidavit of the settlor’s intent.

The “Nominee Trust”

Massachusetts has a unique trust, known as a “nominee trust”, which frequently holds title to real estate. It is not a true trust. It is a principal/agent relationship. The beneficial owners are listed on a separate schedule of beneficiaries (which is not recorded in the Registry of Deeds). The trustee cannot act without the beneficiary’s authority. The listed owner on the schedule may be an individual or individuals, a trust or an entity.

Donor Advised Funds (DAFs)

In addition to trusts, many clients utilise donor advised funds (DAFs) as part of their overall estate planning strategy. DAFs are governed principally by federal law.

Massachusetts recognises trusts. Case law has respected and supported trusts for centuries.

The Massachusetts Uniform Trust Code (MGL c 203E), effective since 8 July 2012, governs the administration of trusts.

Serving as a trustee for a foreign trust in Massachusetts can have income tax implications for both the trustee and the beneficiary. Massachusetts generally taxes income derived from sources within Massachusetts. Even if a trust is administered by a non-Massachusetts trustee, if the trust generates income from sources within Massachusetts (such as rental from real estate located in Massachusetts), that income can be subject to Massachusetts income taxes.

If the foreign trust has Massachusetts-resident beneficiaries, income allocated or distributed to those beneficiaries can be subject to Massachusetts income tax, even if the trustee is no longer in Massachusetts.

If a non-resident estate or trust accumulates Massachusetts-source income, that income is taxable to the estate or trust regardless of whether the beneficiaries are Massachusetts residents or not.

Grantor as Trustee

A grantor’s service as a trustee does not by itself create a separate Massachusetts tax.

Grantor-Trust Status

Retained powers may cause the grantor to be treated as the owner for federal and Massachusetts income tax purposes. Different retained powers can cause estate tax inclusion.

The Massachusetts Homestead Law protects the value of a home (which can be a house, manufactured or mobile home, condominium or co-op) from the claims of unsecured creditors as long as the person plans to continue living in the home and using the home as their primary residence. There is an automatic protection of USD125,000 of the value of the home. If a Declaration of Homestead is filed with the Registry of Deeds, up to USD1 million of the home’s value is protected. Owners who are 62 or older, or are disabled, have extra protection. Each owner can file, and each can protect up to USD1 million of the equity. This extra protection applies only to liens and claims placed on the home after the Declaration of Homestead has become effective. It does not protect against secured debts, mortgages, priority debts (such as government taxes, criminal fines, child support, nursing home liens and support for a former spouse). The cost of filing a Homestead Declaration is USD36.

Traditional third-party spendthrift trusts (trusts established for beneficiaries other than the settlor) that include spendthrift language continue to be effective in Massachusetts. If the beneficiary does not have the right to demand distributions or assign them to anyone else, the trusts are protected from the creditors of the beneficiary. Of course, if funds are distributed from the trust, they are then available to the beneficiary and the creditors of the beneficiary.

Self-settled trusts created for the benefit of the settlor are treated differently. Generally, the creditors have access to the trust to the extent that the trustee has the discretion to make distributions to the settlor or for their benefit. Those are not permitted in Massachusetts – with one exception – a self-settled special needs trust, by which a disabled person puts their own assets into a trust for their own benefit. Under federal law the trust is exempt from being counted as a resource for government assistance. At the death of the settlor, Massachusetts is entitled to be reimbursed for any Medicaid or MassHealth services that were provided during the settlor’s lifetime.

There are no succession planning techniques unique to Massachusetts. Typical strategies and structures include stock recapitalisations, operating agreements for LLCs, partnership agreements and buy-sell agreements.

Massachusetts follows federal law and allows discounts for lack of marketability and lack of control when a partial interest in an entity is transferred.

The increasing complexity of modern family structures means there is often a larger pool of claimants for every estate, which increases the risk that some potential beneficiaries will feel left out or slighted. Intestacy laws do not reflect modern living arrangements (cohabitation, single-parent households, non-traditional relationships) and divorce at an older age is more common.

There have been several high-profile litigation cases on the control of family-owned enterprises.

There is an increase in family claims for caregiving and quantum meruit (unjust enrichment).

There has been an increasing number of “back door” attacks on estate plans, even those with “no contest” clauses. These attacks include challenges to accountings.

Massachusetts allows in terrorem or “no contest” clauses. The purpose is to discourage beneficiaries from challenging the estate planning documents.

For estate disputes a court may order removal of the personal representative (PR) and the appointment of a new (neutral) PR, compel an accounting, order a fee rollback (surcharge) and sanctions.

For trust disputes, MGL c 203E, Section 1001 lists remedies a court may order, including compelling the trustee to perform their duties as a trustee; enjoining the trustee from committing a breach of trust; compelling the trustee to redress a breach of trust by paying money, restoring property or other means; ordering a trustee to account; appointing a special fiduciary to take possession of the trust property and administer the trust, suspend or remove the trustee, reduce or deny compensation to the trustee, or order other appropriate relief.

Professional trustees, lawyers and corporate fiduciaries are common in Massachusetts. Professional trustees are held to a higher standard of duty. Trustees who have special skills or expertise are held to higher standards.

Fiduciaries can be held personally responsible when they breach a fiduciary duty. A trustee can be held personally liable, but only if the trustee was personally at fault. Indemnification and exculpatory clauses are important to limit the liability for breach. An exculpatory clause is unenforceable if it relieves the trustee of liability for a breach committed in bad faith or with reckless indifference to the trust or beneficiaries, or if the clause was placed in the trust due to abuse by the fiduciary in relationship with the settlor, unless it is proved the settlor knew of the clause and understood it.

The Massachusetts Prudent Investor Act (MGL c 203C) governs a fiduciary’s investment of assets and mandates that a trustee must invest the trust as a prudent investor (it also notes that a higher standard of care applies to professional or corporate trustees). The trustee must exercise reasonable skill and care in administering the trust. The standard of reasonableness is in light of the facts and circumstances. In addition to the duty of prudent administration, the trustee has other fiduciary duties including the duty (i) to inform and report; (ii) to collect, control and protect the trust property; (iii) to enforce and defend claims; (iv) of impartiality; and (v) of loyalty.

It is important to note that under case law even the broadest discretionary powers in a trust are subject to judicial review.

See 6.3 Fiduciary Regulation pertaining to the Massachusetts Prudent Investor Act. The law provides that the prudent investor rule may be expanded, restricted, eliminated or altered by the terms of the trust. Typically, in a trust, broad investment powers are included to address diversification and asset selection challenges. Trustees are generally required to promptly dispose of unsuitable investments and diversify assets in accordance with the Prudent Investor Act. The trust can provide that a trustee can opt out of this requirement and that is very helpful when there are unique assets such as a closely held business in a trust. If the intent is to retain risky assets, the trust document should specify that. Massachusetts law does not disallow any particular asset class.

A person’s domicile or legal residence is their true home or main residence. A person can have multiple homes but only one domicile. According to the Massachusetts Department of Revenue, the legal residence is usually where someone maintains the most important family, social, economic, political and religious ties, and it depends on all the facts and circumstances of each case, including good faith. Other factors include where vehicles are registered, voter registration, address used on a driver’s licence, location of bank accounts, brokerage accounts and credit card accounts, and the governing law in estate planning documents (health-care proxy, durable power of attorney, will, trust, etc).

Domicile for estate tax purposes is determined by the facts and circumstances of the taxpayer’s life, taking into account subjective intent.

Each person keeps their present domicile until a new domicile is established. A new domicile may be acquired by abandoning the current domicile, establishing a residence at a new place and intending to make the new residence one’s home permanently or for an indefinite time, with no certain present intent to return to the previous home.

The burden of proving that a taxpayer has changed their domicile lies with the person asserting the change.

For Massachusetts income tax purposes, a taxpayer is considered a full-year resident of Massachusetts if the taxpayer has a home in Massachusetts for the entire tax year or, for someone domiciled elsewhere, maintenance of a permanent place of abode in Massachusetts and spends more than 183 days of the taxable year in Massachusetts (days spent in Massachusetts while on active duty with the US armed forces do not count).

A taxpayer is considered a part-time resident if the taxpayer moves to Massachusetts during the tax year and becomes a resident or moves out of Massachusetts during the tax year and ends their status as a resident.

A taxpayer is a non-resident if they are neither a full-year nor a part-year resident.

There is no expeditious means for an individual to obtain citizenship in Massachusetts.

Massachusetts has enacted the Uniform Transfers to Minors Act by which a custodian may make discretionary distributions to or for the benefit of a minor until the minor reaches the age of 21. There are no special Massachusetts trusts for minors.

Disabled persons may be entitled to both federal and Massachusetts government assistance programme benefits (Supplemental Security Income (SSI), Medicaid and MassHealth). If the trust is a third-party trust established by someone other than the beneficiary, the income and principal are considered accessible to the beneficiary only to the extent the beneficiary has the right to require that the funds be distributed to them or for their benefit. If the trust is discretionary, the property is accessible only to the extent that the beneficiary has the right to compel the trustee to exercise discretion and distribute to the beneficiary. The intent of the settlor matters.

For self-settled trusts, there are trusts that qualify as exempt under federal law. The trust must, however, provide that on the beneficiary’s death the government is reimbursed before the remaining assets may be paid to the remaindermen.

Under the Massachusetts Uniform Probate Code, guardians manage the custody and physical well-being of a minor or an incapacitated person. Conservators manage assets for the person under protection. If a guardian or conservator is required, it must be court-appointed. For many who have planned having a valid health-care proxy (for medical issues) and financial durable power of attorney (for financial issues), this obviates the need for a guardian or conservator. An adult person may nominate in their durable power of attorney who should be appointed their guardian and/or conservator if that is needed, and the nominated person must be notified of any court proceeding. If appointed, there are ongoing annual court reports that must be filed. There may also be additional court requirements, such as the appointment of a guardian ad litem, the need for a guardian to submit and annually update a care plan, and the need for a conservator to file a financial plan.

Power of Attorney

Massachusetts recognises durable power of attorney to manage financial and legal affairs. It remains effective despite the principal’s later incapacity if it contains the statutory disability language. It may be immediately effective or drafted to become effective only upon incapacity. As a practical matter most durable powers of attorney are drafted to be effective immediately. In practice it should specifically address such matters as:

• banking, investments and real estate;
• tax returns and tax elections;
• retirement benefits;
• trust and estate planning transactions;
• digital assets;
• gifts (if appropriate, which should be carefully reviewed and not a standard clause);
• access to records; and
• hiring of advisers and caregivers.

The durable power of attorney can nominate who would be appointed guardian or conservator should protective proceedings commence. This is an important clause that should be carefully reviewed because under current law, the nominated person has standing in the proceeding even if they are not an heir.

Massachusetts has not adopted the Uniform Power of Attorney Act. In practice banks and financial institutions may scrutinise older or broadly worded instruments, or may require their own durable power of attorney form to be signed.

Health Care Proxy

A competent adult may appoint a health care agent by a written document signed by two adult witnesses. The agent’s authority begins when the principal lacks the authority to make health care decisions. There can be successor agents named. As a practical matter each agent’s cell phone number should be on the form. The agent has the authority to make health care decisions the principal could have made, including decisions concerning life-sustaining treatment. The powers given to the agent can be limited in the document. A separate expression of wishes or living-will-type document is often used to guide the agent. Massachusetts does not have a statutorily authorised living will.

Revocable Trusts

A funded revocable trust permits the successor trustee to manage the trust assets if the settlor becomes incapacitated. It can provide more continuity and privacy than reliance on a durable power of attorney, especially for family businesses.

HIPAA Authorisation and Related Documents

A separate medical information authorisation is commonly used so that designated family members and agents can obtain information even if they are not acting in an official capacity.

Guardianship and Conservatorship

If private planning is absent or insufficient the Probate and Family Court may appoint a guardian to make personal and health-related decisions and a conservator to manage property and financial affairs.

A co-ordinated durable power of attorney, health care proxy, funded revocable trust, medical information authorisation and clear succession of agents will often avoid or reduce the need for court supervised guardianship or conservatorship.

Traditional estate planning, including health-care proxies, living wills, durable powers of attorney and trusts, are generally used. It is important to have successor fiduciaries and to reflect on conflict of interest. Many clients purchase long-term care insurance.

The Massachusetts Parentage Act (effective as of 1 January 2025), updating MGL c 209C, strengthens protections for parents who use surrogacy, in vitro fertilisation or other forms of assisted reproduction. A parent can now establish legal parentage through one of eight methods: presumption of parentage (both marital and non-marital presumptions), court adjudication by a court of competent jurisdiction, acknowledgement through signing a voluntary acknowledgement of parentage, genetic connection (excluding egg or sperm donors), adoption, de facto parentage (defined), intended parentage through assisted reproduction, and intended parentage through a surrogacy agreement.

Explanation of Terms

“Intended parent”

An “intended parent” is a person, married or unmarried, who intends to be legally recognised as a parent of a child conceived through assisted reproduction.

“Presumed parent”

A “presumed parent” is an individual assumed to be the parent of a child, unless the presumption is legally challenged or a valid denial of parentage is issued, or a court judges them as a parent. An individual is considered a presumed parent if they are married to the child’s birth parent at the time of the child’s birth, if the child is born within 300 days of the termination of the parties’ marriage, or if the individual resides in the same household as the birth parent and child and has de facto parent status. The petitioner must provide clear and convincing evidence of:

• living with the child as a regular member of the household for at least 40% of the child’s life or for at least three years;
• consistently taking on care-giving responsibilities for the child;
• assuming full and permanent responsibility for the child without expecting financial compensation;
• presenting the child to others as their own;
• forming a bonded, dependent relationship with the child that is parental in nature;
• receiving consent from all the legal parents for this relationship; and
• demonstrating that formal adjudication of parentage serves the child’s best interests.

Legal parents

Under the new law, a court may recognise more than two legal parents if multiple individuals have claims to parentage, and if acknowledging more than two parents serves the child’s best interests.

Adopted children

An adopted person is considered the child of the adopting parents and not of their natural parents. If the child is adopted, they are entitled to inherit under intestacy laws from the adopted parents, not the birth parents. If a child is placed for adoption and was legally adopted, that child will not inherit from their birth parent, unless the child was adopted by a blood relative. If a child is adopted by their parent’s spouse, that does not affect intestate inheritance law (MGLC c 190B, Section 2-114).

Posthumously conceived children

A posthumously conceived child is entitled to inherit under the laws of intestacy if the child survives for 120 hours (MGLC c 190B, Section 2-108).

Massachusetts was the first state in the country to recognise same sex-marriage in the Massachusetts Supreme Judicial Court’s opinion, Goodridge v Department of Health.

Massachusetts does not recognise common law marriage.

See 9.3 Cohabitation and Unmarried Couples for discussion of domestic partnerships and cohabitating couples.

Massachusetts does not create a marriage merely because two people live together for a long period. Cohabitation by itself generally creates no automatic spousal inheritance, elective share, support or property rights. Massachusetts may recognise a valid common law marriage created in another jurisdiction, but Massachusetts cohabitation by itself does not create one.

Domestic Partner Status

Massachusetts does not have a single statewide domestic partnership status equivalent to marriage for estate, tax and succession purposes. Domestic partnership exists in several limited and sometimes overlapping forms. A city or town may adopt a domestic partnership ordinance or by law. The rights depend on the ordinance. They may include certain local benefits. However, they do not create statewide rights.

Massachusetts law sometimes defines “domestic partner” for a particular statutory purpose. For example, the Paid Family and Medical Leave statute includes a domestic partner within its statutory definition of family relationship. An employer, university, insurer or benefit plan may also recognise a domestic partner under its own rules. When that occurs, those benefits arise in accordance with that contract and do not generally create any inheritance or marital tax rights.

Unmarried partners do not receive the Massachusetts succession rights afforded to spouses, including an intestate share or elective-share rights, merely by reason of cohabitation. Nor does cohabitation create the marital estate tax treatment available to spouses. Unmarried couples therefore commonly use wills, trusts, beneficiary designations, joint ownership agreements, durable powers of attorney, health care proxies and cohabitation agreements to create rights for themselves that would otherwise be provided automatically under marriage.

Since 1 January 2023, Massachusetts has allowed a personal income tax deduction for charitable contributions based on the federal charitable contribution guidelines, with a few exceptions. Massachusetts does not allow a deduction for the contribution of household goods or used clothing. Taxpayers are not required to itemise deductions on the federal income tax return to obtain a Massachusetts deduction. The Massachusetts deduction applies specifically to reducing Part B – adjusted gross income (wages) and does not extend to reducing income from capital gains, dividends or interest (except for interest from Massachusetts banks), as under federal law, the contributions must be substantiated.

There are no charitable structures unique to Massachusetts. Outright gifts, donor advised funds, charitable lead trusts, charitable remainder trusts and private foundations are common to the other states.