Maryland’s Elective Share Law is designed to ensure that a surviving spouse cannot be completely disinherited. Even if a Will or Trust leaves little or nothing to the surviving spouse, Maryland law gives that spouse the right to claim a portion of the deceased spouse’s estate.
This law is especially important for:
- Couples preparing or revising Estate Plans.
- Estranged or separated spouses who are still legally married
How Much Can a Surviving Spouse Claim?
Under Maryland law, with a few exceptions, the amount a surviving spouse may claim depends on whether the deceased spouse has surviving children or other descendants:
- If the deceased leaves children or descendants → the spouse may claim one-third (1/3) of the estate.
- If there are no surviving descendants → the spouse may claim one-half (1/2) of the estate.
The Expanded “Augmented Estate”
Traditionally, the elective share applied only to assets going through probate, such as property, bank accounts, and personal belongings in the decedent’s name alone with no beneficiaries assigned. But Maryland now includes what is called the “augmented estate,” which covers:
- Non-probate assets, such as life insurance or retirement accounts with named beneficiaries.
- Jointly owned property.
- Assets held in Revocable Trusts.
This expansion prevents individuals from avoiding the elective share by moving wealth into non-probate accounts, giving surviving spouses access to a larger pool of assets.
Deadlines and Exceptions
A surviving spouse must act within strict timelines: nine months from the date of death, or six months from probate of the Will (whichever is later). We routinely work with clients to make sure this is done correctly.
It is also possible to waive the elective share in writing, often through a marital or prenuptial agreement. This is common in second marriages, where spouses prefer to leave assets to children from prior relationships.
Because the law is nuanced and includes exceptions, it can significantly affect how assets are distributed if not carefully planned for in advance.
Why Planning Matters
Considering Maryland’s Elective Share Law during Estate Planning is critical to avoid unexpected disputes or court intervention. Proactive planning can protect your wishes, reduce conflict, and provide peace of mind to you and your loved ones.
If you are a Maryland resident, please contact us to discuss how this law may affect you while creating your Estate Plan. Call us at 301-696-0567 or schedule online at www.lenaclarklegal.com.
⚠️ This article is for informational purposes only. It does not create an attorney-client relationship. Every family’s circumstances are unique—please seek advice from a qualified attorney about your specific situation.