What’s in a probate estate? After a new Maryland case, the answer for certain purposes apparently now includes assets previously excluded. Unless it is changed, this ruling could trip up the many Maryland residents who use Transfer on Death designations on investment accounts to simplify their estate plans.
The issue arises under a long-established public policy that discourages people from disinheriting their spouses. The common law gave a forced interest in a deceased spouse’s estate to the surviving spouse. That approach has given way to the modern statutory model of the elective share, which lets a surviving spouse take a share of his or her predeceasing spouse’s estate, regardless of what was written in the spouse’s will. The elective share is set by state statute and varies anywhere from one-third to three-quarters of the estate, depending on the jurisdiction and on which family members survive.
