Probate is a legal process that takes place after someone dies, involving the validation of their will and the distribution of their assets according to that will or, if there is no will, according to state law. One critical aspect of probate in Maryland is the “right of election,” which can significantly impact how an estate is settled. In this post, we will look into what the right of election entails, its implications for surviving spouses, and its overall impact on the probate process in Maryland.

What is the Right of Election?

The right of election allows a surviving spouse to claim a portion of the deceased spouse’s estate, regardless of the terms outlined in the will. This legal provision aims to protect surviving spouses from being disinherited or left with an unfair share of the estate. In Maryland, this right is enshrined in the state’s estate and probate laws to ensure that surviving spouses receive a fair share of the marital assets.

Legal Basis

Maryland’s right of election is codified in the Maryland Estates and Trusts Code, specifically under Section 3-203. According to this statute, a surviving spouse can elect to take a statutory share of the deceased spouse’s estate instead of what was left to them under the will. This share is generally one-third of the net estate if there are surviving children or descendants, and one-half of the net estate if there are no surviving children or descendants.

How the Right of Election Works

Eligibility and Timing

To exercise the right of election, the surviving spouse must meet specific eligibility criteria and adhere to strict timing requirements. These include:

• Legal Marriage: The surviving spouse must have been legally married to the decedent at the time of death.
• Timing: The election must be made within:
  • Nine months of the decedent’s death, or
  • Six months after the probate of the will, whichever is later.
• Filing: A formal written notice of the election must be submitted to the probate court within the prescribed timeframe.
• Legal Guidance: It is advisable to consult with an experienced probate attorney to ensure the notice is properly drafted and submitted, avoiding mistakes or delays that can jeopardize the elective share.

Filing the Election

The process of filing the right of election involves submitting a formal written notice to the probate court. This notice must clearly state the intention to take the elective share and be filed within the prescribed timeframe. It is advisable for surviving spouses to consult with an experienced Maryland probate attorney to ensure that the notice is properly drafted and submitted, as any mistakes or delays can jeopardize their right to the elective share.

Impact on the Probate Process

Alteration of Asset Distribution

When a surviving spouse exercises the right of election, it can significantly alter the distribution of assets outlined in the decedent’s will. Instead of following the specific bequests and instructions in the will, the probate court must adjust the distribution to allocate the statutory share to the surviving spouse. This adjustment can affect other beneficiaries, potentially reducing their inheritances.

Potential for Disputes

The exercise of the right of election can also lead to disputes among beneficiaries, particularly if the decedent’s will contains specific bequests that are affected by the reallocation of assets. Beneficiaries who receive reduced shares may contest the election or the valuation of the estate. This may lead to litigation and prolonged probate proceedings. In such cases, the role of a skilled Maryland estates attorney becomes absolutely essential in navigating these disputes and ensuring a fair resolution.

Factors Influencing the Right of Election

Marital Agreements

Prenuptial and postnuptial agreements can influence the right of election. These agreements often contain provisions waiving the right of election, meaning that the surviving spouse has agreed not to claim the statutory share in exchange for other benefits or arrangements. It is essential for these agreements to be valid and enforceable under Maryland law, as any ambiguities or deficiencies can lead to legal challenges.

Estate Planning Strategies

Effective estate planning can mitigate the impact of the right of election on the probate process. Strategies include:

• Creating Trusts: Establishing trusts can help manage and distribute assets according to the decedent’s wishes while providing for the surviving spouse.
• Gifting Assets During the Decedent’s Lifetime: Transferring assets as gifts during the decedent’s lifetime can reduce the estate’s value and minimize the impact of the right of election.
• Ensuring Proper Beneficiary Designations on Non-Probate Assets: Properly designating beneficiaries for non-probate assets such as life insurance policies, retirement accounts, and payable-on-death accounts ensures that these assets are distributed outside of probate and according to the decedent’s wishes.
• Establishing Joint Ownership: Titling property jointly with the right of survivorship ensures that the property automatically passes to the surviving spouse upon the decedent’s death, bypassing probate.
• Utilizing Payable-On-Death Accounts: Setting up payable-on-death (POD) accounts for bank accounts and certificates of deposit allows for direct transfer to the named beneficiary, avoiding probate.

Consulting with an estate planning attorney can help you create comprehensive plans that address the right of election and other probate-related issues.

Importance of Legal Counsel

Dealing with the right of election and its impact on probate requires expert legal counsel. Probate attorneys play a critical role in advising surviving spouses on their rights, assisting with the filing of the elective share, and representing their interests in court. Additionally, they help executors and other beneficiaries understand their obligations and rights, facilitating a smoother probate process.

Avoiding Common Pitfalls

Common pitfalls in the right of election process include:

• Missing deadlines
• Improperly valuing the estate
• Failing to account for all assets
• Ignoring marital agreements
• Inadequate documentation
• Ignoring state-specific laws
• Failing to communicate properly with all beneficiaries

An experienced probate attorney can help avoid these issues by providing attention to detail and comprehensive legal guidance. This ensures that the surviving spouse’s rights are protected and the probate process proceeds without complications.

Conclusion

Understanding Maryland’s right of election is crucial for surviving spouses and beneficiaries involved in the probate process. This legal provision ensures that surviving spouses receive a fair share of the marital estate, even if the decedent’s will suggests otherwise. However, exercising this right can complicate the probate process and lead to disputes among beneficiaries. Therefore, it is essential to seek the guidance of an experienced Maryland probate attorney to achieve the best outcome possible.

Contact Us

If you are dealing with Maryland probate issues or need assistance with the right of election, the attorneys at Blackford & Flohr are here to help. Our team of leading Maryland probate attorneys is dedicated to providing compassionate and knowledgeable legal support to ensure your rights are protected. Contact us today to schedule a consultation and learn more about how we can assist you with all your probate and estate planning needs.