Maine Surviving Spouse Rights

A surviving spouse in Maine cannot be cut out of an estate. Maine law gives the survivor a right of election worth 50 percent of the marital-property portion of the augmented estate under 18-C M.R.S. section 2-202, plus three separate allowances: a homestead allowance, exempt property, and a family allowance. Each allowance sits on top of anything the will or intestacy leaves. The election has a firm deadline, so the calendar matters from the first week.

Maine is a full Uniform Probate Code state, so it keeps the elective share and all three allowances. Some states dropped the allowances when they adopted the Code. Maine did not. A page that tells a Maine reader there is no family allowance is wrong. This guide walks through each protection, the dollar figures set by statute, and the deadline that decides whether the election survives.

What Maine Gives a Surviving Spouse

Maine hands a surviving spouse four distinct protections, and they stack. The elective share is the survivor's tool to claim against a will or an intestate share that leaves too little. The three allowances are set-asides the survivor takes in addition to any share. Here is the shape of it before the detail:

Protection	Amount	Statute	Deadline
Elective share	50% of the marital-property portion of the augmented estate	18-C M.R.S. 2-202	9 months after death or 6 months after the will is probated, whichever is later
Homestead allowance	$22,500 base, adjusted for inflation	18-C M.R.S. 2-402	Claimed during administration
Exempt property	$15,000 base value, adjusted for inflation	18-C M.R.S. 2-403	Claimed during administration
Family allowance	Reasonable maintenance during administration	18-C M.R.S. 2-404	Claimed during administration

The allowances are cumulative. A surviving spouse can take the homestead allowance, exempt property, and a family allowance together, and each one is in addition to any benefit passing by the will, by intestate succession, or by the elective share. The estate runs through the Maine probate process, and the survivor files these claims inside that case. For how the estate opens and moves, read the Maine probate guide.

The elective share is the survivor's right to override a will. Under section 2-202, a surviving spouse of a decedent who dies domiciled in Maine may take an elective-share amount equal to 50 percent of the value of the marital-property portion of the augmented estate. The spouse can make this election whether the decedent left a will or died intestate, so a small bequest, or none at all, does not settle the question.

Two ideas do the work here: the augmented estate, and the marital-property portion of it. Both come next.

The Augmented Estate (18-C M.R.S. 2-203)

Maine does not measure the elective share against the probate estate alone. That would let a person sidestep a spouse with beneficiary forms and joint accounts. Instead, section 2-203 builds an augmented estate from four parts added together:

The decedent's net probate estate.
The decedent's nonprobate transfers to other people, such as payable-on-death accounts, survivorship property, and beneficiary designations that pay someone other than the spouse.
The decedent's nonprobate transfers to the surviving spouse, such as life insurance or retirement benefits paid to the spouse.
The surviving spouse's own property and the spouse's nonprobate transfers to others.

Pulling all four together closes the paperwork gaps that would otherwise leave a spouse with nothing.

The Marital-Property Portion (18-C M.R.S. 2-203)

The elective share is not 50 percent of the whole augmented estate in every marriage. Section 2-203 first sets a marital-property portion, which is the augmented estate multiplied by a percentage that climbs with the length of the marriage. The elective-share amount is half of that portion. A long marriage treats almost all of the augmented estate as marital property; a brief one treats very little of it that way.

Length of marriage	Percentage counted as marital property
Less than 1 year	3%
1 year but less than 2 years	6%
2 years but less than 3 years	12%
3 years but less than 4 years	18%
4 years but less than 5 years	24%
5 years but less than 6 years	30%
6 years but less than 7 years	36%
7 years but less than 8 years	42%
8 years but less than 9 years	48%
9 years but less than 10 years	54%
10 years but less than 11 years	60%
11 years but less than 12 years	68%
12 years but less than 13 years	76%
13 years but less than 14 years	84%
14 years but less than 15 years	92%
15 years or more	100%

Read it with the 50 percent in mind. At 15 years or more, the marital-property portion is 100 percent of the augmented estate, and the elective share is half of the whole augmented estate. After one year of marriage, the marital-property portion is 6 percent, and the elective share is half of that, so 3 percent of the augmented estate. The schedule is why marriage length changes the math so much.

How the Share Gets Satisfied

The election does not hand the spouse a fresh 50 percent off the top of the estate. Property already passing to the surviving spouse counts first toward the elective-share amount. That includes what the will leaves the spouse, survivorship property, and beneficiary proceeds paid to the spouse, along with the spouse's own included property. Only the shortfall is charged to the probate estate and the other recipients. A spouse who already holds sizable joint or beneficiary assets may find the election adds little, so the comparison is worth running before filing.

The Election Deadline (18-C M.R.S. 2-211)

The right expires on a clock. Under section 2-211, the surviving spouse, or the spouse's conservator or agent under a power of attorney, must make the election by filing a petition for the elective share in the court and delivering it to the personal representative within 9 months after the date of death, or within 6 months after the will is admitted to probate, whichever limit expires later. Miss the later of those two dates and the election is gone. Track the deadline from the start, because a delayed appointment or a contested will can move the second date without extending the first.

The Homestead Allowance (18-C M.R.S. 2-402)

The homestead allowance is a flat set-aside. Under section 2-402, a surviving spouse is entitled to a homestead allowance of $22,500. If there is no surviving spouse, the allowance is split equally among the decedent's minor children and dependent children. The base figure is $22,500, and it adjusts for inflation by the year of death, covered below.

Two features make this allowance strong. It is in addition to any benefit or share the spouse takes by intestate succession, by the elective share, or by the will, unless the will expressly says the gift is in place of the allowance. And it is exempt from and has priority over every claim against the estate other than the costs and expenses of administration and reasonable funeral expenses. So even when debts swamp an estate, the homestead allowance is paid ahead of general creditors.

Exempt Property (18-C M.R.S. 2-403)

Beyond the homestead allowance, a surviving spouse may claim household goods and vehicles. Under section 2-403, the spouse is entitled to tangible personal property, including household furniture, automobiles, furnishings, appliances, and personal effects, up to $15,000 in value beyond any security interest in those items. If there is no surviving spouse, the decedent's children share this right jointly.

Exempt property stacks with the rest. Section 2-403 states the entitlement is in addition to any benefit or share passing by intestate succession, by the elective share, or by the will. If the estate does not hold enough of these items to reach the $15,000 value, the spouse can make up the shortfall from other estate assets. The base value is $15,000 and, like the homestead allowance, it adjusts for inflation by the year of death.

The Family Allowance (18-C M.R.S. 2-404)

The family allowance keeps money flowing while the estate is open. Under section 2-404, the surviving spouse and the minor children the decedent was supporting are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration. The court or the personal representative can pay it as a lump sum or in periodic installments.

A few points shape how it works:

It is exempt from and has priority over all claims except the costs and expenses of administration, reasonable funeral expenses, and the homestead allowance.
It is in addition to any share passing to the survivor by intestate succession, by the elective share, or by the will.
If the estate is not large enough to pay its allowed claims, the family allowance cannot run for more than one year.

Because the amount is measured by what is reasonable for maintenance rather than a fixed dollar figure, the size depends on the family's circumstances and the estate. The personal representative sets an amount, and a dispute over it goes to the court. For how the personal representative fits into all of this, read the Maine executor duties guide.

These Amounts Rise With Inflation (18-C M.R.S. 1-108)

The $22,500 homestead allowance and the $15,000 exempt-property value are the base figures written into the statute. They do not stay flat. Under section 1-108, these amounts adjust up or down with the Consumer Price Index for All Urban Consumers, measured against a reference base for calendar year 2017, and the change is keyed to the year of death for a decedent who died after 2018. The result rounds to the nearest $100.

Here is what that does: a death in a later year draws a higher figure than the $22,500 and $15,000 base amounts. Confirm the adjusted number for the year your spouse died before you rely on it, because the figure that applies is the one for that year, not the base in the statute text. The same year-of-death adjustment applies to the intestate dollar amounts in section 2-102, which the Maine intestate succession guide walks through.

If there is no will, the surviving spouse starts with the intestate share under section 2-102, which can be the entire estate, or a set dollar amount plus a fraction, depending on who else survives and whether the couple's descendants are shared. The elective share is a separate choice that sits on top of that. A spouse compares what the will or the intestate share provides against what the elective-share election would yield, then takes the larger result. The three allowances come on top either way. Our Maine intestate succession guide sets out the full no-will scheme, and the Maine will requirements guide covers what a will can and cannot override.

When a Spouse Loses or Gives Up These Rights

The protections are strong, not absolute. Three things can end them.

Waiver. Under 18-C M.R.S. section 2-213, a spouse can give up the right of election and the homestead, exempt-property, and family allowances, in whole or in part, before or after marriage, by a written and signed contract, agreement, or waiver. A prenuptial or postnuptial agreement is the usual form. A waiver is not enforceable if the spouse did not sign it voluntarily, or if it was unconscionable when signed and the spouse was denied fair disclosure of the other's finances. The court decides unconscionability as a matter of law. Have a licensed Maine attorney review any waiver before relying on it.

Divorce. A final divorce or annulment ends the marriage, so a former spouse is not a surviving spouse and has no election or allowance. Under section 2-804, a divorce also revokes revocable gifts and appointments a person made to the former spouse in a will or other governing instrument, treating the former spouse as having died before the divorce.

Homicide. Under section 2-802, a person who feloniously and intentionally kills the decedent forfeits the benefits that would otherwise pass by intestate succession, will, trust, joint assets, life insurance, and beneficiary designations. Maine treats the killer as having disclaimed those benefits.

Frequently Asked Questions

Can a spouse be disinherited in Maine?

Not fully. Even if a will leaves the spouse nothing, the survivor can elect the statutory share, worth 50 percent of the marital-property portion of the augmented estate under 18-C M.R.S. 2-202. The spouse is also entitled to the homestead allowance, exempt property, and a family allowance. A valid written waiver is the main way to give up these rights.

How much is the elective share in Maine?

The elective share is 50 percent of the marital-property portion of the augmented estate under 18-C M.R.S. 2-202. The marital-property portion is the augmented estate multiplied by a percentage that rises with the length of the marriage, from 3 percent under one year to 100 percent at 15 years or more. At 15 years, the elective share reaches half of the entire augmented estate.

How long does a surviving spouse have to claim the elective share in Maine?

The petition is due within 9 months after the date of death, or within 6 months after the will is admitted to probate, whichever is later, under 18-C M.R.S. 2-211. Missing the later of those two dates ends the right, so track the deadline from the start of the case.

Does Maine have a homestead allowance and a family allowance?

Yes. Maine keeps all three Uniform Probate Code allowances. A surviving spouse can claim a $22,500 base homestead allowance under 18-C M.R.S. 2-402, up to $15,000 in exempt property under 18-C M.R.S. 2-403, and a reasonable family allowance during administration under 18-C M.R.S. 2-404. The dollar figures adjust for inflation by the year of death.

Do the allowances come on top of the elective share or the will?

Yes. The homestead allowance, exempt property, and family allowance are each in addition to any benefit passing by the will, by intestate succession, or by the elective share, unless the will expressly provides that a gift replaces an allowance. A spouse claims the allowances and then still takes the larger of the will or the elective share.

Can spousal rights be waived in Maine?

Yes. Under 18-C M.R.S. 2-213, a spouse can waive the elective share and the allowances, before or after marriage, by a signed written agreement. Courts will not enforce a waiver that was signed involuntarily or that was unconscionable without fair financial disclosure. A licensed Maine attorney should review any waiver.

How the Election Generally Works

For a surviving spouse weighing the elective share, the review usually runs in this order:

The estate picture. The will, the inventory, and the estate filings show what the probate estate holds, and the beneficiary and title records show what passes outside it.
What already reaches the spouse. Property passing to the spouse by the will, by survivorship, and by beneficiary designation counts first toward any elective-share amount.
The comparison. Estimating the augmented estate, applying the marital-property percentage for the length of the marriage, and halving it shows how the election compares against the will and the $22,500-plus in allowances.
The deadline. The petition is due by the later of 9 months after death or 6 months after the will is probated.
The filing. The election and the allowance claims are filed inside the estate's administration. A licensed Maine attorney can check the math on a blended-family estate or one with large nonprobate transfers.

This guide is general information about Maine estates, not advice for your situation. Confirm anything that affects your estate with the Maine Probate Court for the county where the decedent lived or a licensed Maine attorney.

Sources:

Title: Maine Revised Statutes Title 18-C, Section 2-202: Elective share. Publisher: Maine State Legislature. Publication Date: Not listed. URL: https://legislature.maine.gov/statutes/18-C/title18-Csec2-202.html
Title: Maine Revised Statutes Title 18-C, Section 2-203: Composition of the augmented estate; marital-property portion. Publisher: Maine State Legislature. Publication Date: Not listed. URL: https://legislature.maine.gov/statutes/18-C/title18-Csec2-203.html
Title: Maine Revised Statutes Title 18-C, Section 2-211: Proceeding for elective share; time limit. Publisher: Maine State Legislature. Publication Date: Not listed. URL: https://legislature.maine.gov/statutes/18-C/title18-Csec2-211.html
Title: Maine Revised Statutes Title 18-C, Section 2-402: Homestead allowance. Publisher: Maine State Legislature. Publication Date: Not listed. URL: https://legislature.maine.gov/statutes/18-C/title18-Csec2-402.html
Title: Maine Revised Statutes Title 18-C, Section 2-403: Exempt property. Publisher: Maine State Legislature. Publication Date: Not listed. URL: https://legislature.maine.gov/statutes/18-C/title18-Csec2-403.html
Title: Maine Revised Statutes Title 18-C, Section 2-404: Family allowance. Publisher: Maine State Legislature. Publication Date: Not listed. URL: https://legislature.maine.gov/statutes/18-C/title18-Csec2-404.html
Title: Maine Revised Statutes Title 18-C, Section 1-108: Cost-of-living adjustment of certain dollar amounts. Publisher: Maine State Legislature. Publication Date: Not listed. URL: https://legislature.maine.gov/statutes/18-C/title18-Csec1-108.html
Title: Maine Revised Statutes Title 18-C, Section 2-213: Waiver of right to elect and of other rights. Publisher: Maine State Legislature. Publication Date: Not listed. URL: https://legislature.maine.gov/statutes/18-C/title18-Csec2-213.html
Title: Maine Revised Statutes Title 18-C, Section 2-802: Effect of homicide on intestate succession, wills, trusts, joint assets, life insurance and beneficiary designations. Publisher: Maine State Legislature. Publication Date: Not listed. URL: https://legislature.maine.gov/statutes/18-C/title18-Csec2-802.html
Title: Maine Revised Statutes Title 18-C, Section 2-804: Revocation of probate and nonprobate transfers by divorce; no revocation by other changes of circumstances. Publisher: Maine State Legislature. Publication Date: Not listed. URL: https://legislature.maine.gov/statutes/18-C/title18-Csec2-804.html

It is not legal advice.

What Maine Gives a Surviving Spouse

The Elective Share (18-C M.R.S. 2-202)