Under Maine law, a surviving spouse has a right of election to take an elective share of his or her deceased spouse’s estate.  This is true, even if the surviving spouse was intentionally disinherited from the estate plan.  The surviving spouse may elect to take one-third (1/3) of “augmented estate.”

The augmented estate consists of the sum of the gross estate less the expense of funeral and estate administration, homestead allowance, exemptions, family allowance, and enforceable claims.  18-A M.R.S. § 2-202.  Please note that the augmented estate excludes pensions or life insurance payable to someone other than the surviving spouse. This amount does include, however, the value of any property the surviving spouse would have received from a right of survivorship with the deceased spouse.

The surviving spouse must make this election within nine (9) months. 18-A M.R.S. § 2-205.

Importance of Market Value

When calculating the augmented estate Maine law provides that the estate includes the value of the property transferred for less than market value also referred to as adequate consideration.  For example, if deceased spouse transferred real estate to another person, not his or her spouse, prior to death for less than market value, this real property will be included in the augmented estate for purposes of the elective share calculation for the surviving spouse’s spousal share.

Omitted Spouse

In situations where the surviving spouse was disinherited in the will made prior to the marriage, under 18-A M.R.S. § 2-301, the omitted surviving spouse shall receive:

[T]he same share of the estate he would have received if the decedent left no will unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.

18-A M.R.S. § 2-301.

Lastly, as noted above, a surviving spouse whose deceased spouse died domicile in Maine may be entitled to the following allowances and exempt property:

  • Homestead allowance of $10,000. 18-A M.R.S. § 2-401.
  • Exempt Property not to exceed $7,000. 18-A M.R.S. § 2-402.
  • A reasonable family allowance. 18-A M.R.S. § 2-403.

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