Maine Elective Share for Surviving Spouse: Rights and How to Claim

If you were left out of your spouse's Will — or left a nominal amount — Maine law gives you the right to override it. Under the Maine Uniform Probate Code (18-C M.R.S. § 2-202), a surviving spouse has the right to elect against the estate and take a statutory share regardless of what the Will says. This right cannot be waived by the decedent acting alone.

The catch: you have a strict deadline, and the calculation is more complex than most people expect.

The Elective Share: The Basic Rule

The surviving spouse may elect to receive 50% of the value of the marital-property portion of the augmented estate. The key phrase is "marital-property portion" — it varies based on the length of the marriage.

Under 18-C M.R.S. § 2-203, the marital-property portion scales as follows:

So for a couple married 15 years, the surviving spouse can claim 50% of the entire augmented estate. For a couple married 3 years, only 18% of the augmented estate is treated as marital property, and the elective share is 50% of that 18%.

What Is the Augmented Estate?

The augmented estate is specifically designed to prevent a decedent from circumventing the surviving spouse's rights by transferring assets outside of probate before or at death. It includes four components:

1. The decedent's net probate estate — assets subject to the Will and probate court administration
2. The decedent's non-probate transfers to others — assets that passed outside of probate but that the decedent controlled, such as: life insurance proceeds payable to third parties, joint tenancy assets passing to a third party, payable-on-death accounts to third parties, assets in revocable trusts
3. The decedent's non-probate transfers to the surviving spouse — assets that already passed to you outside of probate (these count toward your elective share amount, reducing the additional amount you can claim)
4. The surviving spouse's own property — including your own assets and any inheritance or gifts you received from the decedent during the marriage

This means a decedent who emptied their estate into joint accounts with children, or who created a trust for others, cannot eliminate the surviving spouse's rights. Those assets are pulled back into the calculation.

The Filing Deadline

The surviving spouse must file a proceeding to claim the elective share within 9 months of the date of death or 6 months after the Will is admitted to probate, whichever is later.

This deadline is absolute. Courts do not routinely grant extensions. If you are disinherited or believe the estate was structured to cut you out, contact a Maine probate attorney immediately — do not wait for the estate to proceed through probate before taking action.

Three Additional Protections That Come First

Maine law provides three statutory allowances that the surviving spouse is entitled to regardless of the Will, the elective share, or creditor claims. These are separate from the elective share and are not charged against it — they are provided in addition to it.

For decedents dying in 2026, the inflation-adjusted amounts are:

1. Homestead Allowance (18-C M.R.S. § 2-402): $29,500

This is a cash allowance — $29,500 from the estate — that the surviving spouse receives ahead of any unsecured creditors. If there is no surviving spouse, minor children share it. It's paid regardless of what the Will says.

2. Exempt Property (18-C M.R.S. § 2-403): $19,700

The surviving spouse is entitled to $19,700 worth of household furniture, automobiles, furnishings, appliances, and personal effects from the estate. This is value you get to keep free from the claims of unsecured creditors. Again, this is ahead of creditors, not instead of the Will — if there's not enough exempt property in the estate, the difference is paid in cash.

3. Family Allowance (18-C M.R.S. § 2-405): $35,400

This is a reasonable allowance for maintenance of the surviving spouse and minor children during the period of estate administration. The $35,400 figure is the standard amount, but a court can order more if circumstances require it. This is designed to keep the household financially stable while the estate is being administered — it's not contingent on the estate's solvency.

These three allowances together total $84,600 for 2026, and they take priority over unsecured creditor claims. They are adjusted annually for inflation under 18-C M.R.S. § 1-108.

What You Are Entitled to in Total

If a surviving spouse claims all available rights, the combined entitlement includes:

• The $29,500 homestead allowance
• The $19,700 exempt property allowance
• The $35,400 family allowance
• Plus the elective share of 50% of the marital-property portion of the augmented estate

Each of these is independent of the others. They don't reduce each other.

Any amounts the surviving spouse already received through the Will, non-probate transfers, or other estate distributions are credited against the elective share calculation — meaning the estate pays the difference between what you already received and what the elective share entitles you to.

When You Need a Probate Attorney

Calculating the augmented estate is not a task most people can do accurately without professional help. It requires:

• Identifying and valuing all non-probate transfers made by the decedent in the years before death
• Determining the marital-property percentage based on the exact length of the marriage
• Crediting what the surviving spouse already received against the elective share amount
• Filing the formal proceeding within the 9-month deadline

Blended families and second marriages are where this most often matters. If your spouse had children from a prior relationship, held assets in trusts, or directed significant life insurance or retirement account proceeds to others, the elective share calculation can involve substantial sums — and the other beneficiaries will be represented by counsel.

This is one situation where the $29,500 homestead and $35,400 family allowance can be claimed without an attorney (they're simpler to establish and assert). But the elective share against a complex augmented estate is attorney territory.

The Allowances If There Is No Will

If there is no Will (intestate estate), the elective share rights still exist — but they may not be necessary. Under Maine's intestate succession rules, the surviving spouse typically receives a substantial share of the estate automatically. The elective share is primarily relevant when a Will attempts to cut out or underprovide for the surviving spouse.

The Maine Survivor Benefits Navigator includes a full worksheet for the statutory allowances and elective share, along with the forms and deadlines for asserting these rights with the county Probate Court.

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