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Maryland Surviving Spouse Rights
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Maryland Surviving Spouse Rights

Maryland surviving spouse rights: the augmented-estate elective share of one-third or one-half under §3-403, the family allowance, and the election deadline.

By Settled Editorial

A Maryland surviving spouse cannot be written out of an estate. Even when the will leaves the spouse little or nothing, the survivor can elect an elective share of the augmented estate under Estates and Trusts §3-403: one-third if the decedent left surviving descendants, one-half if not. The family allowance and the intestate share sit alongside that right. This guide walks through each protection, the property the elective share reaches, and the deadline that controls it.

Overview of Spousal Rights

Maryland gives a surviving spouse three distinct protections, each with its own statute:

  1. Elective share - a claim on one-third or one-half of the augmented estate, an alternative to what the will leaves (§3-403)
  2. Family allowance - $10,000 for the surviving spouse or registered domestic partner, plus $5,000 per unmarried child under 18, paid during administration (§3-201)
  3. Intestate share - what the spouse inherits when there is no valid will (Estates and Trusts Title 3, Subtitle 1)

These rights work differently from each other. The elective share is an against-the-will remedy the spouse chooses. The family allowance is paid during administration ahead of general creditors, whether or not there is a will. The intestate share applies only when there is no will. Maryland does not offer a separate exempt-property set-aside or a homestead allowance, so §3-201 and the elective share carry the spousal protection that other states spread across more allowances.

Maryland probate runs through two offices in each of its 24 jurisdictions: the elected Register of Wills, which opens the estate and keeps the records, and the Orphans' Court, the probate court that supervises administration and hears disputes. In Montgomery, Harford, and Howard counties, the Circuit Court judges sit as the Orphans' Court. The elective-share election is filed with the court, so know which office serves the county where the decedent lived.

The Elective Share

Maryland reformed its elective share to an augmented-estate model effective October 1, 2020 (§3-403 et seq.). The change matters because the older rule measured the spouse's claim against the net probate estate alone, which let a decedent shrink the claim by moving assets into joint accounts, payable-on-death designations, and revocable trusts. The augmented estate reaches many of those non-probate transfers, so a spouse is harder to disinherit. The reform applies to estates of decedents who died on or after October 1, 2020. For an earlier death, confirm which version of the rule governs.

The Augmented Estate and the Estate Subject to Election

The claim is measured in two steps. First, §3-404 builds the augmented estate, a statutory pool that combines the decedent's probate estate with:

  • Property held in a revocable trust
  • Property over which the decedent held a qualifying power of disposition
  • Qualifying joint interests, such as joint accounts and jointly held property
  • Qualifying lifetime transfers the decedent made

Second, the statute subtracts deductions to reach the estate subject to election: funeral and administration expenses, the family allowances, enforceable debts and claims, and certain other property. The elective-share fraction applies to that net figure, not to the raw probate estate.

One-Third or One-Half

Under §3-403, the elective share is:

Family situationElective share
Decedent left surviving issue (descendants)One-third of the estate subject to election
No surviving issueOne-half of the estate subject to election

"Issue" means the decedent's descendants. When there are children or grandchildren, the fraction is one-third. When there are none, it rises to one-half.

Reduced by Spousal Benefits

The fraction is not a pure add-on. Section 3-403 reduces the elective share by the value of all spousal benefits, meaning the property the surviving spouse already receives from the decedent. A gift to the spouse under the will, a joint account that passes to the spouse, a payable-on-death account naming the spouse, and similar transfers all count. So the election works as a floor: it tops the spouse up to the statutory fraction of the estate subject to election, rather than stacking the full fraction on top of everything the spouse already inherits. A spouse who already receives more than the fraction gains nothing by electing, which is why the choice needs its own math.

When a surviving spouse is disabled or a minor, the election does not lapse. Under §3-405, a guardian or an agent acting under a power of attorney can exercise the election on the spouse's behalf, subject to the statute's conditions. If you may need to act for a spouse, read the Maryland power of attorney guide on agent authority.

Family Allowance

Separate from the elective share, the surviving spouse or registered domestic partner can claim a family allowance of $10,000 for personal use under §3-201, plus $5,000 for each unmarried child of the decedent under 18. The personal representative pays it during administration, and it ranks ahead of general creditor claims. Because the family allowance is one of the deductions used to compute the estate subject to election, it comes off the top before the elective-share fraction is applied. The Maryland family allowance guide works through who qualifies and how it ranks against debts.

Intestate Share

If the decedent left no valid will, the surviving spouse takes an intestate share instead of electing. Those default shares live in Estates and Trusts Title 3, Subtitle 1, and Maryland reformed them effective October 1, 2023 to give a surviving spouse a larger portion. The Maryland intestate succession guide sets out the current shares by family situation. The elective share is the tool for an estate that has a will; the intestate share is the default when there is none.

How the Rights Fit Together

A simplified illustration shows how the pieces interact. Say a will leaves the surviving spouse $20,000, the decedent left two children, and the estate subject to election works out to $300,000 after deductions. The spouse also received a $50,000 payable-on-death account that named the spouse.

  • Elective share fraction. Because the decedent left surviving issue, the fraction is one-third of $300,000, or $100,000 (§3-403).
  • Reduced by spousal benefits. The $20,000 will gift and the $50,000 payable-on-death account are spousal benefits, totaling $70,000. They reduce the elective share, so electing yields roughly $30,000 more than the spouse already receives.
  • Family allowance. Wholly apart from the election, the spouse can claim the $10,000 family allowance under §3-201, paid during administration ahead of general creditors.

The real figures depend on the full augmented-estate accounting, so treat these numbers as an illustration of the mechanics, not a computation for any specific estate. The takeaway is that the elective share tops the spouse up to the statutory fraction, spousal benefits count against it, and the family allowance stands on its own.

Waiver and Forfeiture

A surviving spouse's rights are strong, but not absolute.

Waiver by agreement. A spouse can give up the elective share under §3-406 through a written contract, agreement, or waiver signed by the spouse, made before or after the marriage. A broad waiver of "all rights" in the other spouse's property, or a complete property settlement, waives the elective share, the family allowance, and intestate benefits together. Confirm the terms of any waiver with a Maryland attorney before relying on it.

Divorce. A final divorce ends the marriage, so a former spouse is not a surviving spouse and has no elective share or family allowance claim.

Effect of electing. Once the spouse elects, §3-411 treats the property that would have passed to the spouse under the will, other than spousal benefits, as though the spouse had died before the will was signed. The spouse gives up those will gifts in exchange for the elective share, which is another reason to compare the two paths before choosing.

Deadlines

The election is time-limited, and the clock is unforgiving. Under §3-407, the surviving spouse must make the election by the later of:

  • 9 months after the date of death, or
  • 6 months after the first appointment of a personal representative

The court can extend the time for up to 3 months at a time, but only if the spouse files a petition for the extension, with a copy to the personal representative, before the current period runs out. Miss the window without a pending petition and the right is generally lost. The election itself must be in writing, signed, and filed with the court under §3-408. Calendar the deadline early and confirm your dates with the Register of Wills for the county where the estate is open.

Frequently Asked Questions

Can I be disinherited by my spouse in Maryland?

Not fully. Even if the will leaves you nothing, you can elect an elective share of the augmented estate under §3-403, one-third if the decedent left descendants and one-half if not. You can also claim the family allowance under §3-201. These rights exist apart from what the will says.

How much is the elective share in Maryland?

It is one-third of the estate subject to election if the decedent left surviving issue, or one-half if there is no surviving issue, under §3-403. The share is then reduced by the spousal benefits you already receive, so it tops you up to the statutory fraction rather than stacking on top of everything.

How long do I have to claim the elective share?

You must elect by the later of 9 months after the date of death or 6 months after the first appointment of a personal representative, under §3-407. The court can extend the time up to 3 months at a time only if you petition before the period expires.

Does the augmented estate include joint accounts and payable-on-death assets?

Often, yes. Section 3-404 builds the augmented estate from the probate estate plus revocable trust property, qualifying joint interests, payable-on-death and similar designations, and qualifying lifetime transfers. That wider pool is what makes the reformed elective share harder to defeat with non-probate transfers.

Practical Steps for a Surviving Spouse

The rights only help if you claim them on time and with the right paperwork. A few steps keep the options open:

  1. Ask for the estate filings. Request the will and the inventory from the Register of Wills so you can see what the estate holds and what passed outside probate.
  2. List what you already receive. Note will gifts, joint accounts, and payable-on-death designations that name you, since those spousal benefits reduce the elective share.
  3. Compare the two paths. Weigh what the will gives you against one-third or one-half of the estate subject to election, and remember that electing gives up your will gifts under §3-411.
  4. Claim the family allowance. It is separate from the election and paid during administration, so raise the $10,000 allowance with the personal representative early.
  5. Watch the election window. The deadline runs from the later of 9 months after death or 6 months after the first appointment of a personal representative, and any extension petition has to be filed before that period expires, so the date is worth calendaring early.
  6. Get the paperwork right. The election must be in writing, signed, and filed with the court, so confirm the filing steps with the Register of Wills for the county.

Related Guides

Sources:

It is not legal advice.

Information current as of July 21, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Maryland can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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