Q: Is a spouse (no issue) entitled to the $10k family allowance if they renounce the will and take the elective share?
The husband's will left the spouse less than 25% of the residual estate. She has elected to take the elective share (50%) and has filed the necessary documents to do so. Is the Executor still required to pay her the $10,000 family allowance?
Yes. The alowance is in addition to the elective share. In adition, you reference the elective share "of the residual estate." The elective share is against "the value of the estate subject to election, reduced by the value of all spousal benefits" where "spousal benefits" is further defined as, "the aggregate value of property passing to or in trust for the benefit of the surviving spouse by reason of a decedent's death and property held for the benefit of the surviving spouse in any trust created during a decedent's lifetime of which the decedent was a settlor, reduced by:
(1) With respect to property that the decedent owned jointly with the surviving spouse, that portion of the value of the property that is not included in the estate subject to election;
(2) The value of assets passing by reason of the decedent's death to any trust of which the surviving spouse is not the sole beneficiary during the surviving spouse's lifetime;
(3) The value of assets held in any trust created during the decedent's lifetime of which:
(i) The decedent was a settlor; and
(ii) The surviving spouse is not the sole beneficiary during the surviving spouse's lifetime;
(4) One-quarter of the aggregate value of assets passing by reason of the decedent's death to, or held at the time of the decedent's death in, any marital trust;
(5) One-third of the aggregate value of assets passing by reason of the decedent's death to, or held at the time of the decedent's death in, any trust, whether testamentary or created during the decedent's lifetime:
(i) Excluding a trust described under item (4) of this subsection;
(ii) Of which the decedent was a settlor, if the trust was created during the decedent's lifetime;
(iii) That is held for the exclusive lifetime benefit of the surviving spouse; and
(iv) From which the trustees may make distributions to or for the benefit of the surviving spouse in accordance with a standard not more restrictive than that under § 14-402(b)(3) of this article; and
(6) The entire value of any trust for the exclusive lifetime benefit of the surviving spouse that is not a marital trust and is not described under item (5) of this subsection."
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A: “Estate subject to election” means the portion of an augmented estate that is subject to election as calculated under § 3-404 of MD Code, Estates and Trusts
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