We enjoy considerable freedom in choosing who should and should not benefit from our property at death. We can disinherit children and grandchildren and instead benefit charities, friends, or any other individual or organization. However, you generally cannot disinherit a spouse in Maryland.
Maryland’s Spousal Election law provided a surviving spouse with a 1/3 elective share of the estate if the deceased spouse had children or 1/2 if the deceased spouse did not have children.
The Spousal Election law in Maryland had been frequently criticized as inadequate because the elective share is calculated based only on the deceased spouse’s probate estate – meaning simply the assets that pass under the Will. This does not include assets that are jointly owned, beneficiary designated, or in a trust. As a result, non-probate transfers can frustrate the intent of the spousal election law.
Effective in October 2020, Maryland has a new law which radically changes the way the elective share is calculated. Instead of valuing just probate property, this new law values the augmented estate. The augmented estate includes the probate estate, revocable trusts, jointly titled accounts, and more. Essentially, the law tries to capture everything that an individual owns, not just the property that passes under the Will at death.
Proper estate planning can help preserve your intent. A prenuptial or postnuptial agreement can waive a spouse’s elective share. If you are interested in learning more about protecting your assets and ensuring that your intent is recognized, please contact us.