The spousal elective share law was enacted to prevent a spouse from being disinherited by the other spouse. It grants the surviving spouse the right to elect to take a percentage of the deceased spouse’s estate even if the will does not name that spouse as a beneficiary.
In Maryland, the spousal election extends beyond the probate estate to include some non-probate assets, referred to as the “augmented estate”. This is to prevent the spouse from using estate planning tools to circumvent probate that would negate the purpose behind the protections afforded under the spousal elective share.
Currently in Maryland if there are surviving children, the spouse may elect to take 1/3 of the deceased spouse’s net estate. If there are no children, the surviving spouse may elect to take ½ of the net estate.
A spouse may waive the right to an elective share in a prenuptial agreement or separation agreement.
These are matters that should be discussed with an attorney experienced in Elder Law and probate matters. Contact Stouffer Legal at 443-470-3599 in the Greater Baltimore area for more information.