College Park, MD asked in Probate for Maryland

Q: Can i challenge my husbands will that was made during his prior marriage.

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1 Lawyer Answer
Mark Oakley
Mark Oakley
  • Estate Planning Lawyer
  • Rockville, MD
  • Licensed in Maryland

A: Yes, but you need to have a basis, and you provide zero facts to evaluate on what basis you would challenge his will.

Here are a couple of general observations that apply to all estates:

First, upon divorce, his former spouse lost all legal right to receive any distribution under any will in effect before the date of divorce, regardless of what that will says, including as a beneficiary on any life insurance or under most financial account beneficiary designations. However, divorce agreements and judgments regarding marital assets would be enforceable against the estate.

Second, a surviving spouse may elect to take an elective share of an "estate subject to election" as follows:

(1) If there is surviving issue, the elective share shall equal one-third of the value of the estate subject to election, reduced by the value of all spousal benefits; or

(2) If there is no surviving issue, the elective share shall equal one-half of the value of the estate subject to election, reduced by the value of all spousal benefits.

There is a time deadline to file your election, which is waived if not made within the deadline. The election replaces whatever the will specifically leaves to you, so it is an either/or proposition. You either take under the will as it is written, or you take your election, but not both. The surviving spouse' election rights are absolute--meaning, you do not have to be named in the will to make the election.

Maryland has passed relatively recent laws addressing how the "estate subject to election" is claculated, which expands it to reach potential assets not otherwise in the estate, such as property transferred out of the deceased spouse's name before death, certain trust assets, and certain other property held or titled in such a way as to pass to others outside of the normal estate process. A detailed analysis of your souse's holdings would be required to evaluate the full extent of the estate subject to your election rights.

Finally, in addition to the above, a surviving spouse is entitled to a family allowance of $10,000 out of the estate assets before the residuary estate is divided among heirs and legatees.

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