One of the most common misconceptions is that if you are married and you die without a will, your spouse automatically gets everything. Unfortunately, that often is not the case. Instead, it depends on several factors. First, if you have any joint accounts, those accounts will pass automatically to the joint account holder. Second, if you have a named beneficiary on any account or asset, that account or asset will pass automatically to the designated beneficiary. This could include retirement accounts, life insurance, annuities, bank accounts, investments, stocks, bonds, etc. that specifically list a beneficiary, or that is designated as pay on death (“POD”) or transfer on death (“TOD”). Hopefully, you do not have any former spouses named as beneficiaries on retirement accounts or life insurance policies unless, of course, that is what you specifically intended. This happens more than you may realize.
Next, your family situation has an impact. Do you have children? If so, and if you die without a will, your spouse will not get everything. Further, the amount he or she gets is dependent on whether you have minor children. If you have minor children, your spouse will receive one-half of whatever passes through probate (non-joint or beneficiary designated assets). If you have adult children, then your spouse will receive one-half plus $15,000. Even if you do not have any children, your spouse still may not get everything. Might you have a surviving parent? If so, and if you die without a will, then your spouse will receive one-half plus $15,000. Only if you do not have any surviving children or parents will your spouse get everything if you die without a will. Is this what you intended?
Conversely, another common misconception is that if you are married and have a will that names only your children, your children will get everything. Perhaps you are in a second (or third, fourth, etc.) marriage and you want to make sure your children inherit everything, so you write a will leaving everything to them. Unfortunately, Maryland law does not allow you to disinherit a spouse. Regardless of what your will says, your spouse will have the right to elect a statutory share. In fact, even if you leave your spouse a portion of your estate, he or she can always elect to take a statutory share. The amount of that statutory share is dependent on whether you have surviving issue. If you have surviving issue (children, grandchildren, etc.), your spouse will receive a one-third share of your net estate. If you do not have surviving issue, then your spouse will receive one-half of your net estate. Again, is this what you really intended?
And finally, to set the record straight, there is no such thing as common law marriage in Maryland. Just because you and your significant other lived together for a time, that does not give you the same legal rights as a spouse would have upon their death. So, if any of these situations sound familiar, contact ERA Law Group, LLC at (410) 919-1790 and speak with one of our attorneys who can advise you how best to accomplish your goals and make sure your assets pass to the ones you want.