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Surviving Spouse Rights Maryland

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Maryland law provides for widows with important surviving spouse rights and entitlements, including:

  • Intestate Share
  • Allowance
  • Elective Share

If Decedent Dies Without a Will (Intestate)

If a decedent in Maryland dies without a will and leaves a surviving spouse, the share of the estate that the surviving spouse is entitled to depends on the other heirs that the decedent leaves behind.

Surviving Spouse Rights – No Living Parents Or Children

If the Decedent has no living parents or children, then the surviving spouse inherits the entire estate.

Surviving Spouse Rights – Decedent Survived By Children Who Are Minors

If the Decedent is survived by a spouse, and also has children who are minors, the surviving spouse inherits ½ of the intestate property.  The children inherit the remaining ½ of the intestate property.

Surviving Spouse Rights – Decedent Survived By Adult Descendants

If the Decedent is survived by a spouse and also has descendants who are not minors, the surviving spouse inherits the first $40,000 of the intestate property, and receives ½ of the remaining intestate property.  The decedent’s descendants inherit everything else.

Surviving Spouse Rights – Decedent Survived By Living Parents But No Descendants

If the decedent is survived by a spouse and parents, but does not have any descendants, the amount the surviving spouse inherits depends on the length of the marriage.

If the decedent and the surviving spouse were married for under 5 years, then the surviving spouse inherits the first $40,000 and ½ of the rest of the intestate estate.  If the decedent and the surviving spouse were married for more than 5 years, then the surviving spouse inherits the entire intestate estate.

Spousal Allowances – $10,000 For Personal Use and $5,000 Per Child

Under Maryland Estates and Trusts statute 3-201, a surviving spouse has the right to an allowance of $10,000 for personal use.   An additional allowance of $5,000 for the use of each unmarried minor child of the decedent is also provided.

Elective Share Rights of The Surviving Spouse

In Maryland, a decedent cannot entirely disinherit a surviving spouse.  If a Maryland decedent dies with a will, a surviving spouse has the right to renounce the will and elect to take an elective share.  This generally happens when a surviving spouse is left nothing or very little under the will.  A surviving spouse may elect to take a 1/3 share of decedent’s “net estate” if decedent has surviving issue, or can elect to take a ½ share of decedent’s “net estate” if decedent has no surviving issue.

Property Subject to the Elective Share

The elective share is based upon the “net estate” value.  The “net estate” means the property of the decedent passing by testate succession, without a deduction for state or federal estate or inheritance taxes, and reduced by:

  • Funeral and administration expenses;
  • Family allowances; and
  • Enforceable claims and debts against the estate.

Deadlines

A surviving spouse in Maryland must adhere to the deadlines for electing to take an elective share under Maryland law.  The election must be made within the later of (a) nine months after date of decedent’s death or (b) six months after the first appointment of personal representative under a will.  The deadline for a surviving spouse to elect to take an elective share may be extended by petition filed within initial deadline, and for successive three-month periods thereafter.

Elective Share Rights In Maryland Are Changing Effective October 1, 2020 

Maryland law is changing its approach to the elective share of the surviving spouse.  The changes in the Maryland elective share laws will become effective on October 1, 2020.

The law changes the property subject to the elective share, going from the “net estate” to the “augmented estate.”  The new law increases the types of assets available to the surviving spouse for purposes of the elective share.

Under the “augmented estate,” revocable trusts and assets passing by beneficiary designation will also be included in the elective share calculation.

 

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