Almost all title states (as opposed to community property states) have a statutory elective share mechanism to protect the surviving spouse from disinheritance at death.
“The pre-1990 Uniform Probate Code, along with almost all other non-UPC common-law states, treats this (the right of the surviving spouse) as one of the few instances in American law where the decedents’ testamentary freedom with respect to his or her title-based ownership interests must be curtailed. No matter what the decedent’s intent, the 1990 Uniform Probate Code and almost all of the non-UPC common-law states recognize that the surviving spouse does have some claim to a portion of the decedent’s estate. These statutes provide the spouse a so-called forced share. The forced share is expressed as an option that the survivor can elect or let lapse during the administration of the decedent’s estate, hence in the UPC the forced share is termed the ‘elective’ share’.”
Unif. Probate Code § 2-201 cmt.
In Maryland, the right to the elective share is found in § 3-203 of the Estates and Trusts Article. Essentially, a surviving spouse in Maryland may elect to take one-third of the net estate if there is also a surviving issue, or one-half of the net estate if there is no surviving issue. Md. Code Ann., Est. & Trusts § 3-203. As with most of the provisions governing distribution in Maryland statutory provisions, § 3-203 applies only to the probate estate.
The Uniform Probate Code has evolved over time to “bring elective share law into line with the contemporary view of marriage as an economic partnership.” Unif. Probate Code § 2-201 cmt. In order for an elective share to be consistent with economic partnership in a marriage, the Uniform Probate Code has modified its elective share rule to favor of a sliding percentage scale which applies to the augmented estate consisting of probate and non-probate property. The Uniform Probate Code model increases the surviving spouse’s elective share percentage based on the number of years of the marriage ranging from a 3% share of the augmented estate for marriages lasting over one year but less than two to a 50% share for marriages of fifteen years or more.
Jurisdictions which do not adopt the Uniform Probate Code’s formula permit the probate share to be augmented on a case by case basis based upon the theory that inter vivos transfers to non-spouses operate as a fraud on the spouse’s share. Prior to its 1990 amendments, the Uniform Probate Code approached the issue of fraud on the elective share issue by extending or augmenting the property on which the election acted. This approach purposed to produce more certainty than a case-by-case determination of whether transfers were fraudulent.
Over the years, Maryland developed extensive case law addressing when a fraud on the elective share occurred. When the Henderson Commission studied this issue to give recommendations to the General Assembly as to how the Maryland Elective Share statute should operate, it concluded that existing case law satisfactorily handled the issue:
“In recent years, with the increasing use of various estates and interests created during lifetime, life insurance, etc., a great portion of the property owned by married persons does not become part of the “estate” of the spouse first dying. This has the result – frequently unintended – of allowing the surviving spouse a disproportionately large share of the decedent’s total property, while at other times the share of the spouse is actually less than that contemplated by the statute.
The Boulder Draft of the Uniform Probate Code attempts to resolve this problem as to the share of the surviving spouse by giving the spouse of a testate or intestate decedent an elective share of a ‘net augmented estate.’ Under this proposal, the property in which the surviving spouse would have an interest would include, in addition the probate estate, transfers incident to death, transfers with retained control or survivorship, and other gratuitous transfers, as well as life insurance proceeds, annuities, pensions and community property. See [Uniform Probate Code] § 2-202.
The Commission felt that the question of whether an estate should be augmented by inclusion of property, other than that being administered upon, for purposes of increasing the interest of the surviving spouse could be satisfactorily handled in accordance with the existing law relating to fraud upon marital rights.”
Henderson Report, § 3-101 cmt.
 The jurisdiction that excepts from this rule is Georgia.