With House Bill 99, the Maryland General Assembly passed a major reform to the elective share during its 2019 session. The elective share allows a surviving spouse to elect against their late spouse’s will and receive a percentage of the deceased spouse’s probate estate. In theory, this ensures that a spouse cannot be disinherited. In reality, a spouse is able to place everything outside of their probate estate in so-called non-probate assets. When all assets are placed in non-probate assets, one can effectively disinherit their spouse by ensuring that there is no probate estate for the surviving spouse to elect against. Non-probate estate assets typically include joint bank accounts, beneficiary designations on other accounts (such as an IRA), and life estate deeds. The Bill would count non-probate assets when computing the spousal election.
According to witnesses appearing before the General Assembly, the law has not changed since 1978. Several prior versions of this legislation failed to pass the General Assembly over the past five years. According to testimony, Maryland joins 21 other states using the augmented estate. The augmented estate includes non-probate assets and probate assets and advocates for the bill believe it brings fairness into the distribution of assets to a surviving spouse. The bill awaits Governor Hogan’s signature or veto. If signed, the law becomes effective October 1, 2020.