Case Study: Invoking the Elective Share

By:  James M. Dore, J.D.

Consider the following scenario – a couple got married and had two children, a son and a daughter. After many years of marriage and raising the children into adulthood, the wife took ill and passed away. In the year following his wife’s death, the husband executed a Last Will and Testament that named his two adult children as legatees, and designated the daughter as primary Personal Representative (PR) of his estate and the son as the alternate PR. Several years later, the husband remarried. This second marriage lasted over ten years and was by all accounts a happy one. Although the husband allegedly made statements to several individuals about his desire and need to update his estate plan to provide for his new spouse, he never took formal action to do so. After the passage of more time the husband ultimately died, leaving his widow to deal with an outdated estate plan.

Several weeks after her husband’s funeral the widow received a letter from the husband’s daughter, who was acting in her capacity as PR of the husband’s estate. In her letter the PR alleged that because the widow was not named in her late husband’s Will, she was not entitled to inherit from her husband’s estate. The PR enclosed a check payable to the widow in the amount of $10,000.00—purportedly given the widow as some sort of consolation– along with a “Waiver and Assignment” by which the PR asked the widow to waive her right to the estate and assign the entirety of her interest thereto to the son and daughter.

Although the relationship between the widow and her husband’s children was cordial, it was not close. Further, the widow was not a native English speaker and, despite being fluent in two other languages, her English was not strong. Unsure of her rights and not wanting to make waves, the widow signed the Waiver and Assignment and returned it to the PR. She did not deposit or cash the check.

The widow was left unsettled by the situation and, questioning whether she did the right thing, sought the advice of friends a few days after returning the signed Waiver and Assignment to the PR. Upon learning of the widow’s predicament, her friends wisely urged her to seek counsel experienced in probate law and estate litigation.

The widow’s counsel immediately took action to revoke the Waiver and Assignment, and to claim the widow’s Elective Share of her late husband’s estate pursuant to Section 3-203 of the Estates & Trusts Article of the Annotated Code of Maryland.

The foregoing case study presents another example of why proper estate planning is important, especially when important changes such as subsequent marriages occur. If you would like to learn more about estate planning or if you have questions or concerns regarding your current estate plan in anticipation of important life changes that may be forthcoming, please call us at Elville and Associates. We are ready to assist you.

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