Frequently, Premarital Agreements are used to modify rights of the spouse who survives the other. Maryland's law of inheritance gives a surviving spouse the right to elect against the will of a spouse who has died. The surviving spouse's elective share varies depending on what other relatives also survive. For example, if there is a surviving adult child, the spouse is entitled to $15,000 plus one-half of the intestate estate. More details concerning the rights of the surviving spouse under various circumstances can be found in Section 3-102 of the Estates and Trusts Article
Maryland Family Law Attorneys know that one of the principal advantageous of an agreement is to clearly establish what the surviving spouse will receive and thereby eliminate the uncertainty under Section 3-102. This uncertainty arises because there is a right to organize ones affairs in a manner that keeps assets out of ones' intestate estate. One example is transferring assets to a trust during life.Doing so reduces or eliminates what the surviving spouse can claim as his or her elective share.
Maryland's highest appeals court recently upheld such a transfer in Karsenty vs. Schoukroun. Nevertheless, such a transfer can be held to be a fraud intended to frustrate the rights of the surviving spouse. Unfortunately, the Court declined to give a "bright line" test for determining when a transfer during life will be considered fraudulent. One of the six factors, "motive" of the decedent will often be in dispute and require expensive and far reaching litigation. Rather than a legacy of an expensive and bitter dispute, a Premarital or Post Marital Agreement that will create certainty and promote harmony will often be the prudent choice.