Q1. I am giving serious thought to my estate planning and to who I want to leave most of my assets to when I am no longer around. I am seriously considering leaving the bulk to my two children and not my spouse. I live in Virginia. Would this be possible or is my wife guaranteed a certain amount?
Q2. One more thing… and this involves my sister. She lives in Maryland. She rekindled an old romance from years ago at her class reunion. She is hoping to get engaged on Christmas eve, as she and her boyfriend already picked out a ring. Not only will this hopefully mean a happily ever after for her and her boyfriend, but it also means a big, blended family for her three children and his two sons. What do you suggest when it comes to estate planning for her soon-to-be blended family? Similar to myself, she mentioned also wanting to leave most of her assets to her children. Thanks for your help.
A1. Many people don’t realize that a surviving spouse has a legal right to claim a share of your estate upon your death – even if you have a Will or trust providing otherwise. In Virginia, Maryland, and Washington, DC, the elective share laws allow a surviving spouse to make a claim against the estate of the deceased spouse if they are not satisfied with what was left to them through the will or trust.
Modern elective share laws (which used to be known as “dower and curtesy” laws) protect spouses from being disinherited by the other, giving the surviving spouse the right to receive a fixed amount of the deceased spouse’s estate. The purpose of the elective share is to ensure that the surviving spouse is provided for, within reason, for the remainder of his or her life. In Virginia, Maryland, and DC, the elective share amount is a complex formula based on the decedent’s augmented estate, which factors in not just the decedent’s assets at the time of death (the “estate”), but also certain assets that the decedent gave away prior to death to people other than the spouse (hence the use of the word “augmented”).
The law in Virginia, Maryland and Washington, DC allows a surviving spouse to receive up to one-half of the value of marital property in the augmented estate, as follows:
- Virginia: Determining whether the spouse will receive half or a smaller percentage is based on the duration of the marriage. For example, for spouses who are married less than one year, the elective share is only 3 percent of the augmented estate. This percentage rises with each year of marriage. If the couple is married for five years before the decedent’s death, the elective share is 30 percent of the augmented estate. After 10 years of marriage, the percentage goes up to the full 50%.
- Maryland: In Maryland, the surviving spouse is entitled to 1/3 of the decedent’s augmented estate if the decedent has surviving children, grandchildren, or great-grandchildren. If only the spouse survives, he/she is entitled to 1/2 of the decedent’s augmented estate.
- Washington, DC: In DC, there is no “elective share” law, but DC has a law that allows the surviving spouse to claim a fixed fraction of the estate, regardless of the length of the marriage. The legal share that a surviving spouse or surviving domestic partner is allowed to claim is the same as the spouse or deceased domestic partner would have taken if the deceased spouse or deceased domestic partner had died intestate (without a Will), not to exceed 1/2 of the net estate bequeathed and devised by the will.
The enactment and broadening of the elective share laws in recent years in Virginia and Maryland has greatly expanded the types of assets to include when calculating the augmented estate.
- The electing spouse may be entitled to receive more assets than before.
- Qualifying assets include both probate and non-probate assets, certain jointly owned property, and transfers made while the decedent was alive.
- Since there are exceptions as to what assets are included in the augmented estate, it is crucial to consult an experienced private and estate administration attorney such as those at the Farr Law Firm.
- In addition to the percentage of the estate that the surviving spouse is entitled to claim through the elective share, he or she can also take advantage of statutory allowances. The surviving spouse can usually receive a homestead allowance in addition to the other allowances, which include the family allowance and exempt property allowance. The laws generally allow a surviving spouse to claim all three allowances while maintaining eligibility to make an elective share claim.
- A surviving spouse who is incapacitated can (and in some cases must, such as when the surviving house is on Medicaid) make the elective share claim through a conservator or agent, within a required time period after the will is admitted to probate, usually six months.
- This share may be set aside in a testamentary trust and administered for the benefit of the surviving spouse. If the surviving spouse does not regain capacity, then upon the surviving spouse’s death, any remaining portion of the elective share will typically pass in accordance with the residuary clause in the will of the first spouse who died.
- An exception to the elective share law arises where spouses have agreed to waive this right, whether it be in a prenuptial agreement, a marital agreement, or a separation agreement (though it is important to note that Medicaid does not recognize the validity of these types of private agreements).
To read the elective share law in Virginia, click here. In Maryland, click here. For DC laws, click here.
Please note that the elective share differs from intestacy laws in Virginia and Maryland, but not in DC. This scholarly treatise (current through August 2021) is an excellent resource that summarizes for each state the intestacy laws and the elective share laws with regard to the surviving spouse’s rights to share in deceased spouse’s estate.
A2. How the Elective Share Law Effects New Marriages and Blended Families
The effect of the elective share is important in a variety of scenarios, including married couples creating their estate plan, a spouse whose husband or wife recently died, spouses who are estranged or separated, and spouses with blended families.
A blended family occurs when you have children from a prior relationship or marriage and then you marry or remarry. You now may have additional children with your spouse and want to provide for both children from the prior marriage, children from the present marriage, as well as your current spouse. The typical estate planning approach of spouses leaving everything to each other may not work with this situation because blended families create unique issues that are best addressed by an experienced estate planning attorney such as those at the Farr Law Firm.
Can I Disinherit my Spouse to Provide for my Children?
As explained in this article, you can try to disinherit your spouse, but it will not be an easy task because the surviving spouse can always make a statutory claim against your estate. For other family members, disinheriting is usually as simple as putting the proper language in your estate plan and titling your assets properly, but there are statutory protections in place for your spouse as explained in this article.
What happens when too little is left to the spouse?
If you attempt to disinherit your spouse in a will or trust or even just leave them too little, then the elective share laws that I described earlier will generally take control, but it is important for the surviving spouse, or the agent under power of attorney or the conservator of the surviving spouse, to contact a probate / estate administration attorney as soon as possible after the death of the first spouse to file a claim within the required time limit.
The Importance of a Prenuptial Agreement
Anytime people are entering into a second (or subsequent) marriage, I strongly recommend a prenup. Although not always as strong as using trusts, prenups can pave the way for good estate planning.
Many people think of a premarital agreement as only dealing with what happens in the event of a divorce. However, the most important reason for a premarital agreement is to determine how your estate will be distributed if one of you dies during the marriage, especially if your marriage becomes a long-term marriage (which, of course, is the intended goal of all marriages).
Even if you have already completed an estate plan of your own, a new marriage typically calls for significant changes to your plan.
I am a trained mediator and am available to mediate premarital contracts with couples planning to enter into a second or subsequent marriage, with a goal of preparing the agreement and then doing the subsequent estate planning for the couple. Learn more about the services we offer here.
Estate Planning is Important for Everyone
Here at the Farr Law Firm, we have strategies to help all types of people at all ages to plan for themselves and their loved ones. By planning in advance, each person can retain the assets it has taken a lifetime to accumulate and the peace of mind that their family’s needs will be adequately and properly addressed. If you or members of your family have not done Incapacity Planning, Estate Planning, or Long-term Care Planning, or if a loved one is beginning to need more care than you can handle, please contact us to make an appointment for an initial consultation:
Estate Planning Fairfax: 703-691-1888
Estate Planning Fredericksburg: 540-479-1435
Estate Planning Rockville: 301-519-8041
Estate Planning DC: 202-587-2797
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About Evan H Farr, CELA, CAP
