Guest column: Elizabeth J. McInturff, Esq. Md.’s Augmented Estate Law and estate planning and marital agreements Nonetheless, creative minds were property, irrevocable transfers, life able to avoid probate, thus keeping estates and spousal benefits. assets out of the reach of a spouse, by Clearly, the new Augmented Estate moving them into vehicles that did not Law packs quite a punch, although it pass probate -– such as to retirement is tempered a bit by Md. Est. & Trusts plans, transfer or payable on death Code §3-404, which provides that a accounts, joint accounts, trusts and court may modify the calculation of property which passed via life estate. an augmented estate upon a showing of clear and convincing evidence on a Parties with blended families number of qualifying factors. or those on a second or subsequent Given the overall strength of the marriage often requested prenuptial Augmented Estate Law, practitioners and postnuptial agreements that would be wise to counsel clients provided for waivers of estate rights who seek to limit what their spouse to their current spouse. These efforts may take under their estate, as to typically resulted in decreasing the the importance of an antenuptial overall probated estate from which or postnuptial agreement and strong Elizabeth J. McInturff, Esq. a dissatisfied spouse could take an estate plan. elective share, thereby effectively Maryland’s recently enacted By providing for adequate spousal Augmented Estate Law introduces new disinheriting them. benefits under an estate plan or having protections for dissatisfied spouses In October 2020, Maryland’s new an agreed upon waiver of rights of taking under an elective share. It also Augmented Estate Law, codified election, including as to an augmented makes it difficult to exclude certain at §3-404 of the Estates and Trusts estate, in a prenuptial or postnuptial assets from passing through probate. Article, went into effect. agreement clients can reduce the risk of their spouse taking under an These changes require estate The Augmented Estate Law augmented value of the estate. and family law attorneys to increases a surviving spouse’s rights This may be particularly important carefully counsel their clients as as a beneficiary, expands the assets to a client who is considering or to the importance of having a valid available to the surviving spouse currently in divorce proceedings. antenuptial, postnuptial or separation from which to take, and increases the Removing assets from the augmented agreement, as well as the design of their portion for a surviving spouse from value of the estate also removes the estate planning. one-third to one-half if there are no possibility of the soon-to-be ex other qualifying descendants. Maryland law historically has been receiving perhaps more than was Now, the augmented value of designed to prevent a spouse from bargained for. the decedent’s estate is calculated disinheriting their significant other. Now is the time for both you and by totaling the value of decedent’s Under the previous code, unless the your clients to review their estate plans parties entered into a valid waiver, a probated estate, decedent’s revocable and any signed marital agreements dissatisfied spouse under a will was trusts, all property held by decedent to determine whether they need to entitled to take an elective share of the immediately before death, decedent’s be restructured to protect assets and probate estate. qualifying joint interests, and beneficiaries. The elective share was equal to one- decedent’s qualifying lifetime transfers. third of probated assets or one-half of The overall value is then reduced Elizabeth J. McInturff, Esq., a partner at JDKatz, PC, represents clients in complex probated assets if the decedent did not by certain expenses and claims, trusts, family, civil and commercial disputes. For have surviving qualifying descendants. joint interests, lifetime transfers and more information, visit www.jdkatz.com. TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: January 2021 7 7