In Maryland the elective share is the mechanism that enables a surviving spouse to share in the deceased spouse’s estate despite whether the deceased spouse had updated his or her will after their marriage. A marriage alone does not revoke a pre-marital will. Conversely, a will executed prior to a first marriage shall be revoked “by the subsequent marriage of the testator followed by the birth, adoption, or legitimation of a child by him, provided such child or his descendant survives the testator.” Md. Code Ann., Est. & Trusts § 4-105(3). This provision is necessary because there is no forced heir provision in Maryland law that extends to children. Such a provision would void the pre-marital will and force intestacy rules upon the estate. Section 3-301 provides a method for a pretermitted child to take under certain circumstances. This applies when there is a will providing for other children but not a child born, adopted, or legitimized after the execution of the will. The terms of § 3-301 become operable if:
• the will contains a legacy for a child of the testator but no provision for “a person who becomes a child of the testator subsequent to the execution of the will;” • the child was born, adopted or legitimated after the execution of the will; • the child or his issue survive the testator; and • the will does not expressly state that the child, or issue, should be omitted.
The Court of Special Appeals in Willoner v. Davis, 30 Md. App. 444, 452-56, 353 A.2d 267 (1976); aff’d as Davis v. Davis, 278 Md. 534, 365 A.2d 1004 (1976), outlines the history of § 3-301, its evolution and like laws of other jurisdictions. Under old common law rules, a marriage and birth of a child subsequent to a will had the effect of revoking the will.[1]  Over time, the ecclesiastical courts of England dropped the subsequent marriage provision to hold that where no provision is made in a will for an afterborn child, that will was impliedly revoked. As explained in Williner, Maryland followed the tradition of the English ecclesiastical court in Kerr v. Robinson, 167 Md. 375, 173 A. 584 (1934). In response to the Kerr case, the Maryland General Assembly developed what is now § 3-301(a) which provides that a “will may not be revoked by the subsequent birth, adoption, or legitimization of a child by the testator except under the circumstances referred to § 4-105(3) of this article” (emphasis added). Thus, § 3-301(a) reversed the Kerr decision and the common law as it had developed up to that point. In Willoner the testator had a contingent provision that provided a small share of the estate to his wife’s son (the testator’s stepson) if his wife did not survive him. The testator’s natural children from a prior marriage were left larger shares of the estate. Subsequent to making of the will, the testator adopted his stepchild. At the death of the testator, the stepchild brought the action claiming that he was a pretermitted child and entitled to the same portion as the testator’s natural children. The Court of Special Appeals held that, under § 3-301, he did not qualify to take the larger share because the law states that the testator must have made “no provision for a person who becomes a child of the testator subsequent to the execution of the will.” Here, the child was a contingent beneficiary in the will:
“As we see it, a contingent bequest to such person fully meets the legislative intent, in so much as mentioned, in the will, of the person who subsequently becomes a child, patently demonstrates that the person who became a child of the testator was not omitted from the will through negligence or carelessness.”
Willoner, 30 Md. App. at 454. The Willoner court noted that this was a case of first impression in Maryland. Id. at n.24. In Davis v. Davis, 278 Md. 534, 365 A.2d 1004 (1976), the Court of Appeals supported the Willoner decision. Davis involved a will which provided for a person who was subsequently adopted by the testator. The court held that the pretermitted child statute is not triggered if the will indicates that the subsequent adoption was “within the contemplation of the testator.” Id. at 539. In Davis, the will referred to the child as “Jeffrey Saraga,” as “also known as Jeffrey Davis.” Id. at 540. This was interpreted as an indication that the testator had contemplated adopting Jeffrey at the time of executing the will.[2] If a child qualifies as a pretermitted child that child’s share in the estate is the lesser of:
• the distribution which the child would have taken in the event of intestacy; or • the value of all legacies to children of the testator and issue of deceased children divided by the number of children of the testator who survived him and deceased children leaving issue who take, including the pretermitted child.
Md. Code Ann., Est. & Trusts § 3-302. Accordingly, if there are provisions for other children, the total amount for those children is further divided to account for the pretermitted child. Section 3-303 provides for the pretermitted child to be paid from the legacies of the children named.
[1] This rule is codified today in § 4-105(3). [2] Interestingly, the will referred to another child of his new spouse in the same manner but never adopted the other child.