Maryland's Elective Share: How the Augmented Estate Law Protects, and Complicates, Spousal Inheritance

Maryland's Elective Share: What a Surviving Spouse Is Entitled to Receive

Maryland law generally prevents a married person from completely disinheriting a surviving spouse. Even if a will leaves the surviving spouse little or nothing, the spouse may have the right to claim a portion of the deceased spouse's estate. This is known as the surviving spouse's elective share.

Maryland significantly changed its elective share law in 2020. Under the current law, the calculation is not necessarily limited to property that passes through probate. Certain assets that pass outside the estate, including assets held in a revocable trust, may also be considered when determining the surviving spouse's rights.

How much can a surviving spouse claim?

Under Maryland law, a surviving spouse may generally elect to receive:

• one-third of the estate subject to the elective share if the deceased spouse left surviving descendants; or
• one-half if the deceased spouse left no surviving descendants.

Md. Code, Estates & Trusts § 3-403.

The calculation can be more complicated than simply taking one-third or one-half of the probate estate. Maryland uses what is called the "augmented estate," which can include certain property that passes outside probate.

A revocable trust cannot necessarily be used to disinherit a spouse

This is particularly important for people with revocable living trusts. Before Maryland changed the law in 2020, it was much easier to place assets outside the probate estate and thereby limit what a surviving spouse could claim.

That is no longer the case. Certain assets held in a revocable trust, jointly owned property, and some lifetime transfers may be included when calculating the surviving spouse's elective share. Md. Code, Estates & Trusts § 3-404.

As a result, simply transferring property into a revocable trust does not necessarily prevent a surviving spouse from having a claim against those assets.

The spouse does not receive the elective share twice

Property the surviving spouse already receives is taken into account when calculating whether anything more is owed. For example, a spouse may already receive property through the will, jointly owned assets, a trust, or beneficiary designations.

The purpose of the elective share is to ensure that the surviving spouse receives the amount provided by Maryland law—not to allow the spouse to receive that amount in addition to everything already inherited.

Why this matters for blended families

The elective share can be particularly important in second marriages and blended families.

For example, a person may want to provide for a new spouse during the spouse's lifetime while ultimately leaving most of the estate to children from a prior marriage. Simply placing those assets in a revocable trust and naming the children as beneficiaries may not accomplish that goal because the surviving spouse may still have elective share rights against the augmented estate.

Couples who have agreed that each spouse will leave assets to his or her own children should consider whether a prenuptial or postnuptial agreement is appropriate. Maryland law permits a surviving spouse to waive elective share rights by written agreement. Md. Code, Estates & Trusts § 3-406.

Older estate plans should be reviewed

If your estate plan was prepared before October 1, 2020, it is particularly important to have it reviewed. Maryland's elective share law changed substantially, and an older plan may no longer produce the result you intended.

This is especially important if you are in a second marriage, have children from a prior relationship, have significant assets in a revocable trust, or intend to leave your spouse less than the amount Maryland law would otherwise provide.

There is a deadline for making an election

A surviving spouse who wants to claim the elective share must act within the time permitted by Maryland law. The election generally must be filed within the later of nine months after the spouse's death or six months after the first appointment of a personal representative. Md. Code, Estates & Trusts § 3-407.

Because determining the elective share may require identifying probate assets, trust assets, jointly owned property, beneficiary designations, and other transfers, a surviving spouse who believes he or she may have been inadequately provided for should obtain legal advice early in the estate administration.

Estate planning can prevent problems later

The elective share should be considered when preparing an estate plan, not only after someone dies. For married couples—particularly those with blended families—a properly coordinated estate plan can provide for a surviving spouse while also protecting the inheritance ultimately intended for children or other beneficiaries.

A Maryland estate planning attorney can review the will, trusts, beneficiary designations, property ownership, and any marital agreements together to make sure the estate plan accomplishes what the client actually intends.

This article provides general information about Maryland's elective share and augmented estate law as of 2026 and is not legal advice. The elective share calculation is complex, and the election deadline is strict. Consult a licensed Maryland attorney promptly.