Maryland law recently changed and may affect your estate plan. As of October 1, 2020, Maryland implemented the new Elective Share and Augmented Estate law.
Under this new law, a surviving spouse now has the right to elect to receive a portion of their predeceased spouse’s probate and non-probate assets, regardless of bequests made in their predeceased spouse’s Last Will and Testament, or other spousal benefits received due to their death. This election is referred to as a statutory elective share. This differs from prior law in that, previously, Maryland law only allowed a surviving spouse to elect against the probate estate of the deceased spouse. Beneficiary designations and jointly titled assets to non-spouse designees were previously beyond the surviving spouse’s reach.
The new law directly impacts families where one spouse is receiving benefits from the Medical Assistance program (“Medicaid”). In fact, Medicaid may require the surviving spouse claim an elective share against the deceased spouse’s estate or the surviving spouse may be subject to a penalty resulting from their failure to make the claim. Additionally, families with second or more marriages, as well as blended families, may be affected by this new law.
Lastly, in the event you or your spouse lacks capacity at the time the first spouse dies, court proceedings may be necessary to seek authority to elect against the predeceased spouse’s estate. We recommend updating your Power of Attorney to include the authority for your Attorney-in-Fact to make this election on your behalf.
We strongly advise that you schedule a time to meet with one of our attorneys to review your family’s estate plan. It is entirely possible that the estate plan developed prior to the implementation of this new law contradicts the new suggested estate planning techniques.