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Apr. 01 2015

Disinheriting a Spouse – Statutory Limitation in Maryland

By Steve Elville | Posted in Estate Planning | 1 Comment

Authored by:  Bridgette E. Becker, Esq. – 443-393-7696, bridgette@elvilleassociates.com

Estate planning attorneys have clients with many different situations prompting the need for scheduling consultations to discuss estate planning.  Every so often, an attorney has a client come to their office with the intention of disinheriting a family member who would otherwise inherit under the laws of intestacy.  If a client wishes to specifically disinherit a legal spouse, it is important to counsel the client that although a Will may be drafted to reflect this wish, the legislature has determined that a spouse may still force a share of the decedent’s probate estate even if the spouse was disinherited or feels that their specified share under a Will is insufficient.

In the Maryland Code, Estates & Trusts § 3-208, the rule is set forth that a spouse may elect to take one-third (1/3) of the net estate if the decedent has surviving decedents and one-half (1/2) of the net estate if the decedent passed away without any issue.  In terms of estate planning, the surviving spouse is entitled to either one-third or one-half of their spouse’s probate estate even if the Will leaves less to the surviving spouse.  Please note this applies to a probate estate, but recent case law has shown that non-probate assets may be subject to the spousal elective share as well in certain circumstances.  It is important to note a surviving spouse may always attempt to force an elective share of the decedent’s estate (probate and non-probate) as long as they were legally married at the time of the decedent’s death.

Steve Elville

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Elville & Associates engages clients in a multi-step educational process to ensure that estate and elder law planning works from inception, throughout lifetime, and at death. Clients are encouraged to take advantage of the Planning Team Concept for leading edge, customized planning. Legal Services Include: Wills, Trusts, Estate Tax Planning, Powers of Attorney, Living Wills/Advance Medical Directives, Medicaid Asset Protection Trusts, Medicaid Planning and Qualification, Estate Administration, Fiduciary Representation, Nursing Home Selection, Guardianships, Special Needs Planning for children and adults, Social Security Disability Income (SSDI), Supplemental Security Income (SSI), and IRS tax controversy.

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