The purpose of the spousal elective share law is to provide some protection to a spouse against being disinherited by granting the surviving spouse a right to elect to receive a percentage of the decedent’s estate instead of what, if anything, is provided in the Will. See Estate & Trusts Article 3-208. The statute also provides how the elective share may be waived (3-205).
Spousal election used to apply only to assets in the probate estate. Non-probate assets were exempt. Many states, including Maryland, now provides that spousal election extends to the augmented estate, i.e. which includes non-probate assets. The rationale for augmenting the scope of the assets that can be reached is to protect a spouse against estate planning designed to move assets out of the probate estate to reduce or eliminate a spouse’ elective share. There are exceptions, and in some instances matters are not always clear-cut. For instance, a pre-nuptial agreement or a marital separation agreement may negate the spousal election. The distinction here, is that these are consensual agreements.
In the context of Medicaid paying for long term nursing home care, if the Medicaid recipient’s spouse predeceases, the Medicaid recipient is still entitled to his or her elective share. His representative must claim the elective share timely and report this claim to the Dept. of Social Services managing the case. Failure to do so will result in the non-claimed assets being treated as a gratuitous transfer, which will trigger a penalty period and make the Medicaid recipient ineligible for continued Medicaid benefits. The Medicaid recipient’s representative may also become personally liable. In the context of Medicaid eligibility, the State’s Medicaid Recovery Lien does not extend to the augmented estate.
One must following the procedure and file the election timely or the right to elect against the Will will lapse. These are matters that should be discussed with an attorney exeprienced in Elder Law and probate matters as soon as possible.