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Spousal Entitlements: the “Elective Share”
Maryland law has a system designed to protect surviving spouses from being disinherited following the death of a spouse. For whatever reason, a decedent spouse might prefer to disinherit a surviving spouse, but Maryland law doesn’t allow this to happen – or, more precisely, Maryland law gives surviving spouses the opportunity to avoid this from happening in all cases, although not all surviving spouses choose to take this opportunity. Maryland has something referred to as an “elective share,” which is essentially a fixed amount of a decedent spouse’s estate to which a surviving spouse is entitled. This right to an elective share is absolute, meaning it is always available to the surviving spouse; the only exceptions are when this right is specifically waived in a prenuptial or postnuptial agreement.
The “Augmented Estate” in Maryland
When a surviving spouse chooses to take the elective share, that spouse takes a specific amount from the decedent spouse’s “augmented estate.” The term augmented estate is a term used specifically in Maryland law to refer to the aggregate of the decedent spouse’s probate assets and non-probate assets. Probate assets are all assets which belong to the decedent spouse at the time of the spouse’s passing; probate assets include those assets which have already been set aside for a particular beneficiary within a will. Non-probate assets are simply those which avoid the probate process altogether and go directly to a particular person following the spouse’s death. Examples of non-probate assets are things such as life insurance policy proceeds, as well as property held within a trust.
The concept of the augmented estate was developed in order to ensure that surviving spouse’s receive an equitable portion of the decedent spouse’s estate. Toward this end, the State of Maryland has increased the types of assets which are includable in a person’s augmented estate. For example, Maryland law now includes certain property which is jointly titled, and also assets transferred during the lifetime of the decedent.
The Finer Points of the Elective Share
Although an elective share is an absolute right of the surviving spouse, the surviving spouse still needs to act affirmatively in order to take it. In other words, the elective share doesn’t pass “automatically,” but must be actively claimed by the surviving spouse. To take the elective share, the surviving spouse needs to put the claim in writing, sign the claim, and then file the claim in the appropriate court by a certain deadline. The deadline is either 9 months after the decedent’s death, or 6 months after a personal representative has been appointed.
The elective share is a fixed amount of the augmented estate. The exact amount depends on the specifics of the decedent’s situation: the amount is 1/3 of the augmented estate if the decedent spouse has surviving children or grandchildren; if, on the other hand, the decedent spouse has no surviving children, then the surviving spouse is entitled to ½ of the augmented estate. The elective share can be declined in favor of simply inheriting whatever is due via the decedent spouse’s will, as in some cases the surviving spouse may receive a greater portion of assets in this manner.
Contact the Murphy Law Firm for Additional Resources
If you would like to learn more about spousal entitlements, intestacy laws, how to develop a valid last will and testament, or any other related estate planning topic, contact one of the estate planning attorneys at the Murphy Law Firm today by calling 240-219-5243.
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