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Did you know that your surviving spouse has a right to claim a share of your estate upon your death – even if you have a Will providing otherwise?  In other words, you may not be able to disinherit or partially disinherit your spouse.  This is true even if you are separated from your spouse or have filed for divorce, until you have that final divorce decree in hand.  An exception arises where spouses have agreed to waive this right, whether it be in a prenuptial agreement, a marital agreement or a separation agreement.  While a claim for a share of the estate is often made because the surviving spouse is dissatisfied with the deceased spouse’s estate plan, sometimes the claim is made to achieve a more effective tax result.

Upon a deceased spouse’s death, a surviving spouse may affirmatively elect to receive a share of the deceased spouse’s assets as provided by the statutory provisions of the state of domicile.  All states, except for Georgia, currently afford a surviving spouse some sort of right to a deceased spouse’s estate.  The election must be made within a prescribed period of time.  For example, in Maryland the election must be made the later of the nine months from the date of death or six months from the appointment of the Personal Representative.
 
What is the size of the elective share in your jurisdiction?

Maryland


A surviving spouse may elect to receive one-third of the net estate if the deceased spouse has surviving descendants or one-half of the net estate if the deceased spouse has no surviving descendants.  The “net estate” is limited by statute to the decedent’s probate estate.  This means that non-probate assets, such as life insurance, retirement plans, joint tenancy property and assets held in a revocable trust are not taken into account.  Today, a substantial amount of an individual’s wealth passes at death in non-probate form, causing unintended consequences and permitting avoidance of the law.  Consequently, the Maryland courts have broadened the potential reach of the spouse’s elective share to include non-probate assets in very limited circumstances.  The legislature continues to actively seek a statutory solution to the issue.

District of Columbia


A surviving spouse or domestic partner may elect to receive the amount he or she would take if the decedent had died without a will (“intestate”), but not in excess of one-half of the net estate devised by will.  The intestate share of a surviving spouse or domestic partner is at minimum one-half of the estate so, in all cases, the elective share will be one-half.  The District of Columbia limits the net estate to the decedent’s probate estate.

Virginia


The surviving spouse’s elective share was recently changed for decedents dying after 2016.  The elective share is now 50 percent of a deemed marital property portion of the decedent’s augmented estate.  An “augmented estate” includes with certain exclusions:

  • The decedent’s net probate estate;
  • The decedent’s non-probate transfers; and
  • The surviving spouse’s property and non-probate transfers.

The “marital property portion” is determined by multiplying the 50 percent elective share of the augmented estate by an increasing percentage for each year of marriage, ranging from 3 percent for marriages of less than one year to 100 percent for marriages of 15 years or more.  The new law reflects a view of marriage as an economic partnership, taking into account not only the decedent’s assets and lifetime transfers but also the surviving spouse’s assets and the length of the marriage.
If you have questions or concerns about how the surviving spouse’s right to an elective share might affect your estate plan, contact a member of our Estates + Trusts group at 301-340-2020.


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