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Tobin O'Conner & Ewing Practicality in Practice
  • ~ Washington DC Business Law Attorneys ~

Maryland Just Made It Harder For Married People To Find Loopholes By Which To Disinherit Their Spouses

EstPlan10

Marriage has always been an economic partnership, but recent generations have seen more variation from one couple to another in terms of how married couples join their finances or keep them separate.  One would think that getting married late in life would mean having enough life experience to have an honest discussion about which assets you do not want to share with your spouse because you have already set aside these assets, at least in your mind, for other family members, such as your nieces and nephews or your children from a previous marriage.  You would be surprised, though, how many people are too naïve or too distrustful to discuss their estate plans with their future spouses before they marry.  Until recently, it was easy to lead your spouse to believe that they would inherit enough property from you to keep them financially stable in their old age, but to keep most of your property from becoming part of the estate from which your spouse could claim an elective share.  If the recent change to the law affects your estate plan, an estate planning lawyer can help you update your estate plan appropriately.

The Spouse’s Elective Share Is Now Based on the Augmented Estate

During probate, Maryland law allows the decedent’s surviving spouse to claim an elective share of the decedent’s estate.  The spousal elective share is one third if the decedent has surviving direct descendants (children or grandchildren) and one half if the decedent does not have any descendants.  The surviving spouse has the right to claim an elective share whether or not the decedent wrote a will.  Until last year, the elective share was calculated as a fraction only of the decedent’s assets that went through probate.  Of course, with enough estate planning, it is possible to keep most of your assets out of probate.  If a multimillionaire died, and only $30,000 of his property went to probate, but he left nothing to his wife in his will, she would only get $10,000 if she claimed an elective share.

Under the new law, the elective share is based on the augmented estate.  That means that the court will count some non-probate assets when determining the value of the estate.  The court will now account for revocable trusts and certain joint interests and lifetime transfers when calculating the amount from which the surviving spouse can claim their elective share.

How to Disinherit Your Spouse in Maryland

Getting married means knowing that your spouse can claim a third of your estate, regardless of what your will says.  Titling your property jointly with your siblings or your children is the coward’s way out, and it doesn’t work anymore.  If you really don’t want your spouse to inherit any of your property, you must sign a prenuptial or post-nuptial agreement to this effect.  For the agreement to be valid, your spouse must also sign.  Under the new law, the only way to disinherit your spouse is with your spouse’s consent.

Reach Out to an Attorney for Help

A Washington DC estate planning lawyer can help you revise your estate plan to reflect the current law about the surviving spouse’s elective share.  Contact Tobin, O’Connor & Ewing for help with your case.

Resource:

jdsupra.com/legalnews/change-in-maryland-law-regarding-2696646/

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