Maryland Elective Share: What a Surviving Spouse Is Entitled to Claim

A will can say anything — including that a spouse receives nothing. In Maryland, that provision can be overridden. The elective share is the mechanism that prevents a surviving spouse from being completely disinherited, regardless of what the will says.

If you are a surviving spouse who was left little or nothing by your spouse's estate, or if you are an executor trying to understand whether a spousal claim is coming, this is what you need to know.

What the Elective Share Is

The elective share is a statutory right that allows a surviving spouse to reject what the will offers and instead claim a fixed percentage of the estate. It exists because Maryland law treats marriage as an economic partnership — a spouse who contributed to the household, raised children, or supported the other spouse's career has a legal stake in the accumulated wealth, even if they were excluded from the will.

The amounts are fixed by statute:

• One-third (1/3) of the augmented estate if the decedent is survived by lineal descendants (children, grandchildren, or other direct descendants)
• One-half (1/2) of the augmented estate if the decedent left no surviving lineal descendants

The surviving spouse must actively choose to exercise this right. It is not automatic. If the surviving spouse accepts the will's terms — even if those terms are minimal — the elective share is forfeited.

Registered domestic partners in Maryland are not entitled to the statutory elective share, even if they were registered at the time of death. This right is currently limited to legally married spouses.

What "Augmented Estate" Means Here

Before 2020, the Maryland elective share was calculated only against the probate estate — the assets that passed through the Register of Wills. This created an obvious workaround: a spouse could move substantial assets into revocable trusts, joint accounts, or payable-on-death arrangements, leaving the probate estate nearly empty while the bulk of the wealth passed to other beneficiaries outside probate.

Maryland closed that gap with the augmented estate reform effective October 1, 2020. The elective share is now calculated against the augmented estate, which includes:

• All probate assets
• Assets held in revocable trusts created by the decedent
• Accounts with payable-on-death or transfer-on-death designations
• Jointly held assets that passed to a co-owner by right of survivorship
• Certain transfers made during the decedent's lifetime that were designed to defeat the elective share

The augmented estate calculation essentially asks: across all vehicles — probate and non-probate alike — what did the decedent control and transfer at death? The elective share is taken against that total figure.

This is why the elective share now has real teeth. A decedent who moved $800,000 into a revocable trust naming their adult children as beneficiaries, leaving the surviving spouse only a $30,000 car through the will, cannot use that structure to defeat the surviving spouse's claim. The trust assets are pulled back into the augmented estate calculation.

The Deadline to File: Strict and Non-Negotiable

The surviving spouse must file a written, signed election with the court. The deadline is:

9 months after the decedent's death, or 6 months after the first appointment of a Personal Representative, whichever is later.

Courts treat this deadline as strictly as it reads. Missing it almost certainly results in forfeiture of the right — the surviving spouse is then bound by whatever the will (or intestacy) provides. There is no standard mechanism to revive a missed election.

If the decedent died and no estate was opened quickly, the surviving spouse should track both dates carefully. In some situations — particularly where the estate involves complex assets and the Personal Representative appointment is delayed — the 9-month window from death and the 6-month window from appointment can overlap in ways that compress the practical time to decide.

The election is filed with the Orphans' Court in the county where the estate is being administered.

What Happens After the Election Is Filed

Filing the election does not immediately entitle the surviving spouse to a check. The process after filing involves:

1. Calculating the augmented estate. The Personal Representative and surviving spouse (or their attorneys) work through what goes into the augmented estate: the probate inventory, trust assets, joint accounts, POD/TOD designations, and any transfers that triggered the look-back rules. This calculation is often contested, especially when revocable trusts or large lifetime gifts are involved.

2. Determining the fractional share. Once the augmented estate value is established, the calculation is straightforward: 1/3 or 1/2, depending on whether lineal descendants survive.

3. Satisfying the share from available assets. The surviving spouse's elective share is satisfied first from the assets the surviving spouse is already receiving under the will, by intestacy, or through non-probate transfers. If those assets fall short of the elective share amount, the remainder is pulled from the estate and from non-probate beneficiaries on a proportional basis.

4. Court supervision of any disputes. If the parties cannot agree on the augmented estate valuation, the Orphans' Court will intervene. This is one of the situations where having legal counsel is genuinely necessary — the numbers and legal arguments involved in a contested elective share proceeding are not something an executor or surviving spouse should navigate without an attorney.

When Elective Share Claims Actually Arise

Most married couples provide for each other in their wills and estate plans, so the elective share is rarely invoked in conventional estates. It tends to arise in specific situations:

Blended families. A decedent with children from a prior marriage may have structured their estate to benefit those children, leaving the current spouse a minimal bequest that does not reflect the value of the marital estate. The surviving spouse then faces the choice of accepting those terms or invoking the elective share.

Estrangement. In marriages that had broken down but not yet resulted in divorce, a decedent may have changed their will to exclude the spouse, not realizing (or not caring) that the elective share cannot be defeated by a unilateral change to estate planning documents.

Late-in-life asset transfers. A decedent who transferred large sums to children or funded irrevocable trusts in the years before death may have intended to reduce the augmented estate. Maryland's augmented estate rules capture many of these transfers, but the specifics depend on timing and structure.

Inadequate planning in general. Sometimes it is simply an oversight — a will that was never updated after significant wealth accumulation, leaving a surviving spouse less than the law presumes is fair.

The Relationship to Other Spousal Protections

The elective share is not the only protection Maryland law provides to a surviving spouse. Even without invoking the elective share, a surviving spouse is typically entitled to:

• Statutory allowances for family use during estate administration (a small allowance for personal property and vehicles)
• Homestead allowances in some circumstances
• Priority as administrator if the decedent died without a will

The elective share is the most powerful of these protections because it operates against the augmented estate, overrides express will provisions, and can reach assets that passed entirely outside probate. The others are narrower in scope.

Practical Notes for Executors

If you are the Personal Representative and the surviving spouse has indicated they are considering invoking the elective share, several things follow:

• Do not distribute assets to other beneficiaries until the elective share question is resolved. Distributing the estate and then facing a valid elective share claim creates personal liability for the Personal Representative.
• Make sure the augmented estate calculation is thorough and well-documented. Non-probate assets, revocable trusts, and lifetime transfers all need to be included in the analysis.
• Get legal counsel involved early if there is any indication the surviving spouse will invoke this right. A contested elective share claim is Orphans' Court litigation, not administrative probate.

The Maryland Probate Process Guide covers the full estate administration timeline — including how the elective share interacts with distribution planning, what forms are involved, and when the process moves from the Register of Wills into the Orphans' Court.

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