Q: Is real property of a decedent subject to being included in the net estate for calculating elective share?
Maryland. Real property was held in a life estate deed, with rights, and POD to decedent's children (from previous marriages). Life estate deed was created 6 yrs prior to current marriage to surviving spouse. Decedent and surviving spouse were married 18 yrs when decedent passed.
A: Your facts are incomplete. Real property owned by the decedent is included in the estate for all purposes; however, real estate deeded under a typical life estate has (1) a life tenant, who has exclusive use and rights to the property during their lifetime, but does not "own" the property; and (2) a remainderman (or remaindermen if more than one) who own the property in fee simple absolute upon the death of the life tenant. If the life tenant was the decedent in your question, then the real property is NOT part of the estate, but belongs to the named remainderman(men). Maryland has adopted a new statutory scheme, however, protecting a surviving spouse's marital share of their deceased spouse's estate, which could impact the analysis. Therefore, if the real property is all or partially deemed marital property, which the deceased spouse controlled, there may be a basis for the surviving spouse to claim their marital share, or equivalent value, out of other assets in the estate. Property acquired before the marriage is nonmarital, but if mortgage payments or capital improvements were expended on the property during the marriage, that could create a claim for a marital interest to the extent of those payments or improvements.
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