Baltimore Estate Planning Attorney: Can a Spouse be Disinherited in Maryland?

“Can my spouse disinherit me?” “Can I disinherit my spouse?”

Maryland Law & Spousal Election

Under Maryland law, an individual may not disinherit their spouse. A spouse has a legal right to elect a share of a deceased spouse’s estate whether the surviving spouse was included in the Will or not. Maryland statute provides that a spouse’s elective share is 33% of the net estate value (if there are surviving decedents such as children or grandchildren) and 50% of the net estate value if there are no surviving decedents.


How Maryland Calculates Net Estate Value

It is less clear which assets of the deceased spouse will be considered as part of the net value of the estate. If you are considering making a spousal election of a deceased spouse’s estate, it is advisable that you consult an estate planning attorney to determine what assets could potentially be included in the net estate calculation. This may require court proceedings, but it could also allow you to receive your just distribution of the net estate.


Are Non-Probate Transfers Part of the Net Estate?

In determining whether non-probate transfers, such as Trusts, should be considered as part of the net estate, the court will consider several factors, including, but not limited to: the degree of control over the assets retained by the decedent during her/his lifetime, the degree to which transfers during their life depleted the value of property available to the surviving spouse, whether the decedent exercised retained control over the assets transferred during their life or otherwise enjoyed the property in question, and the relationship between the decedent and the person or persons who benefit by the challenged non-probate transfer.

For a free, confidential conversation to discuss these and other estate planning matters, contact Maryland Estate Planning attorney Stephen J. Reichert at 410-299-4959, sreichert@reichertlegal.com or by clicking here.