What is the elective share of the surviving spouse in Maryland?

Full question:

I live in Maryland. My husband died last month. When I got to see his will after his death, I was shocked to see only a little portion of his entire estate was left to me. Legally, how much of his estate can I possibly get if I approach the court against his will?

• Category: Wills and Estates
• Subcategory: Elective Share of Estate
• Date: 04/07/2025
• State: Maryland

Answer:

You get to keep the property that your husband has passed on to you in his will. Additionally, you can claim one-half of his net estate if your husband has not left behind any surviving issue. However, if you’ve got kids in this marriage or if there are any surviving children of your husband then you can claim only one third of your husband’s net estate.

Net estate is your husband’s property, which passes on to other by will. There are no deductions for the state and federal estate or inheritances taxes made in the net estate.

However, net estate is the property left after making the deductions related to the funeral, family allowances and enforceable claims and debts against the state.  
 
 More details can be found below.

Md. ESTATES AND TRUSTS Code Ann. § 3-203  ;
Right to elective share
   (a) "Net estate" defined. -- In this section, "net estate" means the property of the decedent passing by testate succession, without a deduction for State or federal estate or inheritance taxes, and reduced by:
   (1) Funeral and administration expenses;
   (2) Family allowances; and
   (3) Enforceable claims and debts against the estate.
(b) In general. -- Instead of property left to the surviving spouse by will, the surviving spouse may elect to take a one-third share of the net estate if there is also a surviving issue, or a one-half share of the net estate if there is no surviving issue.
(c) Limitation. -- The surviving spouse who makes this election may not take more than a one-half share of the net estate.
(d) Valuation. -- For the purposes of this section, the net estate and the property allocable to a share of a surviving spouse shall be valued as of the date or dates of distribution.
(e) Applicable share; adjustment. --
   (1) For the purposes of this section, a surviving spouse who has elected to take against a will shall be entitled to the surviving spouse's portion of the income earned on the net estate during the period of administration based on a one-third or one-half share, whichever is applicable.
   (2) If one or more distributions have been made to a surviving spouse or another person that require an adjustment in the relative interests of the beneficiaries, the applicable share shall be adjusted.
 
Md. ESTATES AND TRUSTS Code Ann. § 3-206:
Time limitation for making election; withdrawal
   (a) In general; extension. --
   (1) The election by a surviving spouse to take an elective share shall be made within the later of:
      (i) Nine months after the date of the decedent's death; or
      (ii) Six months after the first appointment of a personal representative under a will.
   (2) (i) Within the period for making an election, the surviving spouse may file with the court a petition for an extension of time, with a copy given to the personal representative.
      (ii) For good cause shown, the court may extend the time for election for a period not to exceed three months at a time.
(b) Withdrawal. -- The surviving spouse may withdraw the election at any time before the expiration of the time for making the election to take an elective share.
 
Md. ESTATES AND TRUSTS Code Ann. § 3-204:
Right of election personal to surviving spouse
The right of election of the surviving spouse is personal to him. It is not transferable and cannot be exercised subsequent to his death. If the surviving spouse is under 18 years of age or under disability, the election may be exercised by order of the court having jurisdiction of the person or property of the spouse or person under disability.