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Understanding the augmented spousal share in Maryland

On Behalf of | May 21, 2024 | Estate Planning |

There are all kinds of reasons that one spouse may want to disinherit another – but Maryland has taken steps to make sure that surviving spouses receive a fair portion of their deceased spouses’ estates – even when steps have been taken to do otherwise.

In Maryland, a surviving spouse is entitled to claim what is called an “elective” share of their spouse’s estate – no matter what the decedent’s will may say. The elective share is one-third of the estate subject to election if the deceased left behind living descendants, and one-half of the estate subject to election if they did not.

What is the estate subject to election?

The “estate subject to election” refers to the portion of a deceased spouse’s estate that can be added together to calculate the surviving spouse’s elective share. Before changes in the law in 2020, they generally only included assets that were subject to probate. That made it possible for a carefully crafted estate plan to basically cut the surviving spouse entirely out.

Under the new “augmented” elective share statute, that’s much harder. The law expanded the rules so that almost all of a decedent’s assets are considered when calculating the spousal share. This includes assets that were jointly owned with others, held in trust, transferred shortly before death to try to avoid leaving an inheritance and even those with beneficiary designations. 

Naturally, the surviving spouse holds the ability to waive the election of their spousal share at any point, and this is frequently done in prenuptial and postnuptial agreements. It can also be done pursuant to a pending divorce. 

Whatever side of the situation you’re on, you need to understand your rights. The wisest move you can make is to seek legal guidance that’s specific to your situation.