What happens if a situation arises where you want to leave your spouse little or nothing under your estate plan? What if you or your spouse forget to update an estate plan before one of you dies? Maryland law has what’s called an “elective share,” which allows a surviving spouse to claim a portion of the deceased spouse’s estate even when the estate plan provides for less. The elective share can also include certain assets outside of probate.
The elective spousal share rules can become especially important after a marriage or separation, during a second marriage, when spouses have children from previous relationships, or when an outdated estate plan no longer reflects the family’s circumstances.
What Is a Maryland Elective Share?
If the deceased spouse leaves surviving children or other descendants, the elective share equals one-third (⅓) of the estate subject to election. If there are no surviving descendants, the elective share increases to one-half (½). Maryland reduces that amount by the value of certain benefits the surviving spouse already receives.
For example, for a $900,000 estate subject to election, the elective share would generally start at $300,000, if the deceased spouse leaves surviving descendants, or $450,000 if there are no surviving descendants. Certain benefits the surviving spouse already received, such as interest in a joint bank account, may reduce that amount.
The Elective Share Reaches Beyond Your Will
Maryland does not calculate the elective share using only probate assets. Instead, Maryland uses an “augmented estate” which can include the probate estate, revocable trusts, certain jointly owned property, and certain lifetime transfers.
This distinction matters because transferring property to a revocable trust does not necessarily remove it or protect it from the elective share calculation. Maryland expressly includes revocable trust assets in the augmented estate.
Getting Ahead of the Elective Share
A spouse can waive elective share rights through a written agreement signed before or after marriage. This can be especially important in second marriages or blended families when spouses want to preserve assets for children from previous relationships. Prenuptial or postnuptial agreements, or a property settlement agreement, may also waive these rights, depending on its terms.
Maryland law also allows courts to review certain transfers that affect the elective share. As a result, transferring assets or making lifetime gifts may not provide a simple way to avoid a surviving spouse’s rights.
Is There a Deadline to Claim an Elective Share?
Yes, a surviving spouse must actively elect to receive the share within a certain timeframe. Generally, the deadline is the later of nine months after the deceased spouse’s death or six months after the first appointment of a Personal Representative. A court may extend the deadline for good cause if the spouse requests an extension within the election period.
Because an election can affect what the spouse and other beneficiaries receive, a surviving spouse should review the estate plan and available assets before making that decision.
The Bottom Line
Maryland’s elective share can affect an estate plan even when a will or trust says otherwise. This becomes particularly important in second marriages, blended families, separations, or when an estate plan no longer reflects the family’s circumstances.
If you want to limit what a spouse receives, or make sure your spouse receives what you intend, your will is only one part of the picture. Proper planning should also consider your trusts, jointly owned property, beneficiary designations, lifetime transfers, and any agreements between you and your spouse.
If you are interested in learning more about options to protect you and your loved ones, please call us to schedule an appointment. (410) 988-3973. www.TheCoxLawGroup.com
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