Author: Denise A. Martin
For various reasons, clients sometimes ask if they can exclude their spouse from receiving anything under their will or other estate planning documents. For example, their marriage may be a second marriage for one or both or may have occurred late in life, such that they have separate assets and separate beneficiaries they would like to benefit upon their death. The short answer is: you can try to disinherit your spouse, but you may not be successful. Under Maryland law, even if you explicitly exclude your spouse from receiving assets under your will, they are entitled to claim an “elective share” of your net estate (i.e., the remaining probate assets after the payment of funeral expenses, probate expenses, family allowances, and enforceable estate debts). See Md. Est. § Trusts Code Ann. § 3-203. The amount of the elective share depends on whether the predeceased spouse had surviving children. If the predeceased spouse had surviving children, the surviving spouse may elect to receive one-third of the net estate. If the predeceased spouse did not have surviving children, the surviving spouse may elect to receive one-half of the net estate. A surviving spouse is also entitled to receive an allowance of $10,000 from the estate for personal use. Md. Est. § Trusts Code Ann. § 3-201. Now, while a surviving spouse has the right to elect the spousal allowance and the elective share, there is no requirement that they do, and they may choose not to do so.
There are ways to avoid the potential risk of a spouse claiming the elective share, such as through trust planning or establishing a pre-nuptial or post-nuptial agreement. Contact our office if you have questions!
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