Twenty-five years ago, Laura packed a suitcase, left Maryland, and disappeared.

She moved overseas with another man and never looked back. No phone calls. No emails. No contact of any kind.

Back in Maryland, her husband, David, assumed the marriage was effectively over. They never formally divorced—but for all practical purposes, their lives had gone in completely different directions.

Years passed.

Laura built a new life abroad and accumulated substantial wealth along the way. She was careful with her estate planning. She created a will. She made sure everything went to the people she cared about.

And she made one thing very clear: David was to receive nothing.

Or so she thought.

When Laura passed away, something unexpected happened.

Despite being estranged for over two decades… despite being completely left out of her will… despite living separate lives in different countries…

David was still her legal spouse.

And under Maryland law, that meant he had rights.

David exercised those rights—and in what felt like a complete shock to everyone involved, he received a substantial portion of Laura’s estate.

Not a small amount.

Not a token share.

A full 40% of her augmented estate.

You Can’t Completely Disinherit a Spouse in Maryland

Stories like this aren’t just hypothetical—they reflect a very real and often misunderstood legal principle.

Maryland law gives a surviving spouse (a legal spouse) the right to “elect” against the will—meaning they can reject what you left them and instead claim a portion of your estate.

That share is:

  • One-third of your estate if you have children or other descendants
  • One-half of your estate if you do not

This right exists regardless of what your will or trust says.

In other words, even if you intentionally leave your spouse nothing, and you never divorced said spouse, they may still be entitled to a substantial portion of your assets.

It’s Not Just Your “Estate”—It’s Your “Augmented Estate”

Here’s where things get even more surprising.

Maryland doesn’t just look at what goes through probate. Instead, it uses something called the “augmented estate.”

This is a much broader concept that includes:

  • Your probate estate (assets in your name alone)
  • Revocable trusts you created
  • Property where you had control before death
  • Jointly owned assets
  • Certain lifetime transfers

The law was changed in 2020 specifically to prevent people from disinheriting a spouse by moving assets outside of probate.

So strategies that used to work—like putting everything into a trust or naming beneficiaries on accounts—may no longer achieve the intended result.

Yes, Even Inherited Assets Are Included

A common misconception is that inherited property is somehow protected.

It’s not.

Under Maryland law, inherited assets held in your individual name are treated just like any other asset for purposes of the elective share.

That means:

  • It doesn’t matter when you inherited the asset
  • It doesn’t matter that it came from your family
  • It doesn’t matter that it was always kept separate

If it’s part of your estate at death, it can be included in the augmented estate calculation.

This is very different from how Maryland treats inheritance in divorce, where inherited property is generally excluded from marital property. The elective share operates under an entirely different framework designed to protect a surviving spouse.

Non-Probate Assets Are Also Fair Game

Another surprise: assets that pass outside of your will may still be included.

This can include:

  • Revocable trust assets
  • Life insurance proceeds payable to someone else
  • Certain accounts where you retained control

The goal of the law is clear: to prevent end-runs around spousal rights.

Why This Law Exists

Maryland courts have made it clear that the elective share is rooted in public policy.

Marriage is treated as an economic partnership, and the law is designed to ensure that a surviving spouse is not left with nothing—regardless of how assets were titled or transferred.

The 2020 shift to the augmented estate approach significantly expanded these protections and made the system more predictable and comprehensive.

Can a Spouse Waive This Right?

Yes—but only if it’s done correctly.

Maryland allows a spouse to waive their elective share rights through a written agreement, either before or after marriage.

However:

  • The waiver must be clear and explicit
  • General language is not enough
  • Simply setting up a trust that leaves assets to someone else is not sufficient

Courts require a clear statement of intent to waive these rights. Without that, the elective share will still apply.

What This Means for Your Estate Plan

The takeaway is simple:

You cannot rely on traditional estate planning strategies alone to disinherit a spouse in Maryland.

This is especially important in situations involving:

  • Second marriages
  • Blended families
  • Estranged spouses
  • Significant inherited assets

Without proper planning, your estate may not be distributed the way you expect.

Final Thoughts

The Maryland spousal elective share is one of the most misunderstood areas of estate planning—and one of the most important.

It reaches far beyond your will and includes assets many people assume are protected.

If your goal is to control how your assets are distributed, especially in complex family situations, it’s critical to understand how this law applies to you.

Does This Affect My Estate Plan?

If you have questions about how the Maryland spousal elective share could impact your estate plan, now is the time to address them.

A well-designed plan can help you navigate these rules and avoid unintended consequences.

Contact our office today to schedule a consultation and make sure your plan works the way you intend:
Email: Donny@DonnyLaw.com
Call: (301) 765-4473
www.donnyknepper.com

About Donny Knepper

Donny Knepper is an estate planning attorney based in Montgomery County, Maryland, with nearly 20 years of legal experience. He is licensed to practice in Maryland, Washington, DC, Pennsylvania, Massachusetts, and New Hampshire.

In addition to his private practice, Donny serves as General Counsel for Spartan Medical, Inc., where he manages a wide range of legal matters—from corporate governance and federal contracting to compliance, intellectual property, and litigation. This experience gives him a strong strategic foundation for helping families plan wisely and protect what matters most.

A United States Marine veteran, Donny served honorably with HMX-1, the Presidential Helicopter Squadron, in Quantico, Virginia. He was born and raised in Erie, Pennsylvania, earned his undergraduate degree from Penn State, and graduated with honors from the University of Richmond School of Law.

Donny recently opened a new office in Olney, Maryland—the community where he lives with his family of four.

Today, as both an attorney and a father, Donny views estate planning as far more than a legal service—it’s a lasting gift of love, clarity, and peace of mind for the people you care about most.

Learn more at donnylaw.com