Under the common law, if the deceased spouse completed a gift of property the surviving spouse would probably not be allowed to impose his or her elective share against such property. “It is beyond cavil that a husband has a right to convey his property without the assent or knowledge of his wife. When the conveyance is an absolute, unconditional transfer, it is valid even if the husband made the transfer to deprive his wife of the property upon his death.” Knell v. Price, 77 Md. App. 331, 336 (Md. Ct. Spec. App. 1988) citingGrove v. Frame, 285 Md. 691, 696 (1979). Only in situations when the decedent retained control or kept an interest in the property would a claim of fraud on the elective share be triggered.
This line of case law involved of a “facts and circumstances” evaluation:
“In Maryland, the completeness of the transfer and the extent of control retained by the transferor, the motive of the transferor, participation by the transferee in the alleged fraud and the degree to which the surviving spouse is stripped of his or her interest in the estate of the decedent spouse have all been considered material, and no one test has been adopted to the exclusion of all other tests. As pointed out by Mr. Sykes in his article above referred to, there are several other factors which have been or may be considered as pertinent, such as the relative moral claims of the surviving spouse and of the transferees, other provisions for the surviving spouse, whether or not he or she has independent means and the interval of time between the transfer and the death of the transferor. There is no statute in Maryland comparable to that relating to the inheritance tax, [citation omitted], which sets up any standard by which the effectiveness and treatment of inter vivos transfers should be determined insofar as the marital rights of a surviving spouse are concerned.”
Whittington v. Whittington, 205 Md. 1, 12 (1953); see also Melvin J. Sykes, Inter Vivos Transfers in Violation of the Rights of Surviving Spouses, 10 Md. L. Rev. (1949). The test articulated in Whittington is a variation on the “badges of fraud” formulation utilized in other settings.
