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Disinheriting a Spouse – Statutory Limitation in Maryland

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.