What Are You Entitled to When Your Spouse Dies – The Elective Share
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What is the Elective Share?
Maryland law protects spouses from being disinherited by the other. The rule of law called the elective share gives the surviving spouse the right to receive a fixed amount of the deceased spouse’s estate. The purpose of the elective share is to ensure that the surviving spouse is provided for, within reason, for the remainder of his or her life.
Read the Law: Md. Code, Estates and Trusts § 3-402
The effect of the elective share is important in a variety of scenarios, including married couples creating their estate plan, a spouse whose husband or wife recently died, spouses who are estranged or separated, and spouses with blended families.
NOTE: A surviving domestic partner of a registered domestic partnership is entitled to take an elective share upon the death of their partner.
Read the Law: Md. Code, Estates and Trusts §2-214(g)
Definitions
For purposes of this article, the spouse that has died will be referred to as the “decedent.”
Elective Share. The elective share is a fixed amount of the decedent’s estate that the surviving spouse is entitled to receive.
Probate Assets. These are assets owned solely by the decedent when he or she dies. In other words, any assets that are titled only in the name of the decedent. Probate assets are distributed according to the terms of the decedent’s will. If there is no will, then probate assets are distributed according to Maryland intestacy law. Examples include bank accounts, real property, and personal property, such as cars, jewelry, and household items.
Non-Probate Assets. Anything other than a probate asset is a non-probate asset. These are assets that have a beneficiary designated to automatically take the asset when the decedent dies. These do not pass under the terms of the decedent’s will. Examples of non-probate assets include life insurance policies, jointly titled bank accounts, certain jointly titled real property, and property held in a trust.
Augmented Estate. This is the value of the decedent’s assets (both probate and non-probate) used to calculate the elective share.
Read the Law: Md. Code, Estates and Trusts § 3-404
How the Elective Share Works
A surviving spouse can choose to either take what is left to him/her under the decedent’s will or claim the elective share and receive a fixed amount of the decedent’s augmented estate. The spouse’s right to the elective share is absolute, unless it was waived through a prenuptial or postnuptial agreement.
Read the Law: Md. Code, Estates and Trusts § 3-406
The surviving spouse is entitled to 1/3 of the decedent’s augmented estate if the decedent has surviving children, grandchildren, or great-grandchildren. If only the spouse survives, he/she is entitled to 1/2 of the decedent’s augmented estate.
Read the Law: Md. Code, Estates and Trusts § 3-403
Maryland has greatly expanded the types of assets to include when calculating the augmented estate. This broadening of the law is beneficial because the electing spouse may be entitled to receive more assets than before. Qualifying assets include both probate and non-probate assets, certain jointly owned property, and transfers made while the decedent was alive. Since there are exceptions as to what assets are included in the augmented estate, it is best to consult a lawyer.
Read the Law: Md. Code, Estates and Trusts § 3-404
How to Make the Election
Election is not automatic. You must voluntarily make the election. The election must:
- be in writing;
- signed by the surviving spouse; AND
- filed in the appropriate court within the later of
- 9 months after the decedent’s death or
- 6 months after the first appointment of a personal representative.
Give a copy of your written election to the personal representative of the decedent’s estate. You can change your mind and withdraw the election, but you must do so before the expiration of time for making the election to take an elective share.
Read the Law: Md. Code, Estates and Trusts §§ 3-407, 3-408