Articles

Taking a Third of Your Spouse’s Estate

A SPOUSE CAN DECLINE TO INHERIT UNDER HER SPOUSE’S WILL AND, INSTEAD, CAN TAKE A THIRD OF HER SPOUSE’S ESTATE

If your spouse passes away while domiciled in Maine, you can choose between inheriting under your spouse’s Will or taking a third of his or her “augmented estate”.

If your spouse dies while domiciled in Maine, you have the right to choose between inheriting under your spouse’s Will and receiving an amount equal to one third of the value of his or her “augmented estate”. You are provided this choice by Maine statute. Its purpose is to guarantee you, as the surviving spouse, at least a third of your spouse’s estate, regardless of what your spouse provides for in his or her Will. This provision is part of the Uniform Probate Code that the Maine Legislature enacted in 1981.

Your statutory choice to elect a one-third share of your spouse’s augmented estate is the culmination of a long evolution in Maine law on women’s rights to property. See the history of marital rights to the spouse’s estate.

What is an “augmented estate”?

The term “augmented estate” in Maine means your spouse’s probate estate (these are assets held by your spouse in his or her name alone), minus funeral and administrative expenses, allowances (the $10,000 homestead allowance and presumptive $12,000 family allowance) and exempt property ($7,000), plus enforceable claims and the value of property in which your spouse had rights (such as jointly owned assets, financial gifts to others as to which your spouse retained the right to receive income during his or her life, and property transfers which he or she could revoke, unless you specifically consented to such gifts and transfers).

An augmented estate does not include life insurance, accident insurance, joint annuities, or pensions payable to someone other than you as the surviving spouse.

An augmented estate does include the value of property transferred to you as the surviving spouse and other categories of property that you may have transferred for less than full value during marriage.

Maine law protects the estate plan your spouse made to have designated properties go to you, as she or he intended .

Maine statute provides for assets to go to you as planned by your spouse, such as property he or she set up to go to you at death, by survivorship or by beneficiary designation. These assets are “charged against” the value of your elective share.

You can waive your right to the one-third elective share.

You can waive your right to elect a one-third share while your spouse is alive, by a written document. A waiver of “all rights” in property in divorce or separation agreement or pre- or post- nuptial agreement includes a waiver to the one-third elective share.

As a second spouse, you still have the right to the one-third elective share.

Even as the second (or third, or more) spouse, you still have the right to claim the one-third elective share. Many Maine residents, particularly in second marriage situations, assume that they are not required to make provisions for their new spouse, and are not aware that the second spouse has a statutory right to a third of his or her spouse’s estate.

When making your estate plan, consider the one-third elective share option.

Planning for marital rights is an important part of any estate plan. To learn more about your and your spouse’s statutory rights to your estate and to make sure that appropriate provisions are made, you can contact me, Phil Hunt, or other Maine estate planning lawyers.