Tag Archives: Senator Cynthia Creem

Spotlight on Spousal Elective Share

The BBA has been a part of many pieces of legislation over the years, especially those that have an impact on our core principles – facilitating access to justice, serving the community at large, and advancing the highest standards of excellence for the legal profession.  However, the BBA’s process to thoroughly examine, deliberate, and eventually take a position on a bill is an involved one, even for seemingly simple bills.  To complicate matters further, the legislative process going on across the street from us is equally – if not even more – harrowing and intricate.  So what does it take to champion a bill through the BBA and on to become a law?  In a word: patience.

Let’s take a closer look at a long-time BBA supported bill, currently with the number S705 – An Act relative to the elective share of surviving spouses.

The Bill

The bill is in the area of trusts and estates law, which is well-known among lawyers as a particularly dense practice area.  Essentially, a spousal elective share is a potential remedy for a spouse left out of his or her significant other’s will.  Under current law, this disinherited spouse is entitled to one-third of the deceased spouse’s total estate.  The law ignores factors such as the duration of marriage, the age of the surviving partner, and the state of the economic partnership.

The spousal elective share bill changes the calculation used to determine the elective share.  Under the bill, the share is a sum of all the couple’s assets, multiplied by a percentage based on the length of the marriage – ranging from three to 100 percent with fifteen or more years of marriage – then dividing that total in half.  The bill reflects a similar economic theory to the one behind the equitable distribution system that is applied when a marriage ends in divorce.

History

The BBA has been working on spousal elective share legislation since the 1990s.  At that time, the BBA and the Women’s Bar Association (WBA) composed one version of the bill, while the Massachusetts Bar Association (MBA) had another.  Over the next few years, these three groups worked together to draft a single consensus bill that the BBA Council first voted to endorse in 2007.  This bill has been replaced by a new bill which is similar, though not identical to the Uniform Probate Code’s spousal elective share provision.  The BBA’s Family Law Steering Committee and Trusts and Estates Section voted to support the latest version of the bill in November 2012 and the BBA Council again approved the bill in February 2013.  The MBA and WBA also support the bill.

Here and Now

The bill was filed in the Senate in January 2013 by Senator Cynthia Creem and referred to the Joint Committee on Judiciary shortly thereafter.  Following an extension order filed in March, and a public hearing in April, at which Deb Manus testified on behalf of the BBA, the bill was reported favorably out of the Joint Committee on Judiciary in late June.  It was then referred to the Senate Committee on Ways and Means, where it currently sits.

We have been working and will continue to work with the other organizations interested in the bill – both in support and opposition – to pursue consensus.  We hope that this bill will garner enough support to pass in the last month left of formal session, but we recognize the hurdles it faces.  As you can see, this is a long and complex process, and the spousal elective share bill is only one example of many bills the BBA is working on.  We will keep you posted on the latest developments with this and all of our bills of interest.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
Comments are disabled for this blog. To submit your comments please e-mail  issuespot@bostonbar.org

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Senate Budget Update

The Senate Ways & Means Committee released its budget this week.  Read our budget breakdown here.  Here’s what we are watching in the Senate budget:

  • MLAC was level funded at $13 million; this is $4 million below their request of $17 million.  Senator William Brownsberger and Senator Cynthia Creem are filing an amendment requesting an increase of this budget line to $17 million.
  • The Trial Court received approximately $617 million, which is about $9 million more than the House budget.  This difference will have to be worked out in a budget conference committee.
  • CPCS received approximately $180 million.  While this funding amount is substantially higher than the funding it received in 2013, the final FY 2014 General Appropriations Act, and this year’s FY2015 House budget recommendation, it falls short of CPCS’s budget request.  This amount does not provide any additional funding for increased attorney compensation.  Several legislators are considering filing amendments to increase this line item.

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Justice Decades in the Making

In mid-March, the Massachusetts SJC handed down Commonwealth v. Robert D. Wade, the first case that relied on the 2012 law codified at G.L.c. 278A “An Act providing access to forensic and scientific analysts.”  The court held for the defendant, granting him an evidentiary hearing on the use of post-conviction DNA tests of evidence collected in 1993.  In its decision, the SJC relied extensively on legislative history and legislative intent to interpret C. 278A. 

We are pleased with the SJC’s ruling and proud to have played a role in this process over the course of nearly seven years. Here’s a brief recap:

Our work is having a real impact today.  Hard work of legal experts, persistence and patience with the legislative process really can advance the cause of justice and improve the criminal justice system.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
Comments are disabled for this blog. To submit your comments please e-mail  issuespot@bostonbar.org

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