Can a surviving spouse claim an elective share in Maine?
Full Question:
My husband and I lived in Maine. My husband was a construction worker. Recently, he passed away in a fatal accident at his workplace. He had forgotten to change his last will which left all his property to his folks. Will I be able to claim a share of my husband’s property?
04/07/2017 |
Category: Wills and Es... » Elective Sha... |
State: Maine |
#35317
Answer:
In Maine, regardless of a surviving spouse election to take or not to take an elective share, he or she is entitled to homestead allowance, exempt property, and family allowance.
The relevant statutes are as follows:
Me. Rev. Stat. tit. 18-A, § 2-201
Right to elective share
(a) If a married person domiciled in this State dies, the surviving spouse has a right of election to take an elective share of ⅓ of the augmented estate under the limitations and conditions hereinafter stated.
(b) If a married person not domiciled in this State dies, the right, if any, of the surviving spouse to take an elective share in property in this State is governed by the law of the decedent's domicile at death; provided that no claim under this subsection shall be made to real property located in this State which was conveyed for value by the decedent during his lifetime.
Me. Rev. Stat. tit. 18-A, § 2-202
Augmented estate
The augmented estate means the estate reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims, to which is added the sum of the following amounts:
(1) The value of property transferred to anyone other than a bona fide purchaser by the decedent at any time during marriage, to or for the benefit of any person other than the surviving spouse, to the extent that the decedent did not receive adequate and full consideration in money or money's worth for the transfer, if the transfer is of any of the following types:
(i) Any transfer under which the decedent retained at the time of his death the possession or enjoyment of, or right to income from, the property;
(ii) Any transfer to the extent that the decedent retained at the time of his death a power, either alone or in conjunction with any other person, to revoke or to consume, invade or dispose of the principal for his own benefit;
(iii) Any transfer whereby property is held at the time of decedent's death by decedent and another with right of survivorship;
(iv) Any transfer made to a donee within two years of death of the decedent to the extent that the aggregate transfers to any one donee in either of the years exceed $3,000.
Any transfer is excluded if made with the written consent or joinder of the surviving spouse. Property is valued as of the decedent's death except that property given irrevocably to a donee during lifetime of the decedent is valued as of the date the donee came into possession or enjoyment if that occurs first. Nothing herein shall cause to be included in the augmented estate any life insurance, accident insurance, joint annuity, or pension payable to a person other than the surviving spouse.
(2) The value of property owned by the surviving spouse at the decedent's death, plus the value of property transferred by the spouse at any time during marriage to any person other than the decedent which would have been includible in the spouse's augmented estate if the surviving spouse had predeceased the decedent to the extent the owned or transferred property is derived from the decedent by any means other than testate or intestate succession without a full consideration in money or money's worth. For purposes of this paragraph:
(i) Property derived from the decedent includes, but is not limited to, any beneficial interest of the surviving spouse in a trust created by the decedent during his lifetime, any property appointed to the spouse by the decedent's exercise of a general or special power of appointment also exercisable in favor of others than the spouse, any proceeds of insurance, including accidental death benefits, on the life of the decedent attributable to premiums paid by him, any lump sum immediately payable and the commuted value of the proceeds of annuity contracts under which the decedent was the primary annuitant attributable to premiums paid by him, the commuted value of amounts payable after the decedent's death under any public or private pension, disability compensation, death benefit or retirement plan, exclusive of the Federal Social Security system, by reason of service performed or disabilities incurred by the decedent, any property held at the time of decedent's death by decedent and the surviving spouse with right of survivorship, any property held by decedent and transferred by contract to the surviving spouse by reason of the decedent's death and the value of the share of the surviving spouse resulting from rights in community property in this or any other state formerly owned with the decedent. Premiums paid by the decedent's employer, his partner, a partnership of which he was a member, or his creditors, are deemed to have been paid by the decedent.
(ii) Property owned by the spouse at the decedent's death is valued as of the date of death. Property transferred by the spouse is valued at the time the transfer became irrevocable, or at the decedent's death, whichever occurred first. Income earned by included property prior to the decedent's death is not treated as property derived from the decedent.
(iii) Property owned by the surviving spouse as of the decedent's death, or previously transferred by the surviving spouse, is presumed to have been derived from the decedent except to the extent that the surviving spouse establishes that it was derived from another source.
(3) For purposes of this section a bona fide purchaser is a purchaser for value in good faith and without notice of any adverse claim. Any recorded instrument on which the register of deeds shall note by an appropriate stamp “Maine Real Estate Transfer Tax Paid” is prima facie evidence that the transfer described was made to a bona fide purchaser.
Me. Rev. Stat. tit. 18-A, § 2-203
Right of election personal to surviving spouse
The right of election of the surviving spouse may be exercised only during the lifetime of the surviving spouse by:
(a) The surviving spouse; or
(b) If the surviving spouse is a protected person, by order of the court in which protective proceedings for the surviving spouse are pending, after a finding that exercise is necessary to provide adequate support for the surviving spouse during the probable life expectancy of the surviving spouse. In a proceeding under this subsection, the surviving spouse's present or future eligibility for public assistance does not diminish the need for support.
Me. Rev. Stat. tit. 18-A, § 2-204
Waiver of right to elect and of other rights
The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement or waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance, exempt property and family allowance by each spouse in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.
Me. Rev. Stat. tit. 18-A, § 2-205
Proceeding for elective share; time limit
(a) The surviving spouse may elect to take his elective share in the augmented estate by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within 9 months after the date of death, or within 6 months after the probate of the decedent's will, whichever limitation last expires. However, that nonprobate transfers, described in section 2-202, paragraph (1), shall not be included within the augmented estate for the purpose of computing the elective share, if the petition is filed later than 9 months after death.
The court may extend the time for election as it sees fit for cause shown by the surviving spouse before the time for election has expired.
(b) The surviving spouse shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented net estate whose interests will be adversely affected by the taking of the elective share.
(c) The surviving spouse may withdraw his demand for an elective share at any time before entry of a final determination by the court.
(d) After notice and hearing, the court shall determine the amount of the elective share and shall order its payment from the assets of the augmented net estate or by contribution as appears appropriate under section 2-207. If it appears that a fund or property included in the augmented net estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he would have been if relief had been secured against all persons subject to contribution.
(e) The order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this State or other jurisdictions.
Me. Rev. Stat. tit. 18-A, § 2-206
Effect of election on benefits provided by statute
A surviving spouse is entitled to homestead allowance, exempt property, and family allowance, whether or not he elects to take an elective share.
Me. Rev. Stat. tit. 18-A, § 2-207
Charging spouse with gifts received; liability of others for balance of elective share
(a) In the proceeding for an elective share, values included in the augmented estate which pass or have passed to the surviving spouse, or which would have passed to the spouse but were renounced, are applied first to satisfy the elective share and to reduce any contributions due from other recipients of transfers included in the augmented estate. For purposes of this subsection, the electing spouse's beneficial interest in any life estate or in any trust shall be computed as if worth ½ of the total value of the property subject to the life estate, or of the trust estate, unless higher or lower values for these interests are established by proof.
(b) Remaining property of the augmented estate is so applied that liability for the balance of the elective share of the surviving spouse is equitably apportioned among the recipients of the augmented estate in proportion to the value of their interests therein.
(c) Only original transferees from, or appointees of, the decedent and their donees, to the extent the donees have the property or its proceeds, are subject to the contribution to make up the elective share of the surviving spouse. A person liable to contribution may choose to give up the property transferred to him or to pay its value as of the time it is considered in computing the augmented estate.
