Maine Statutes on Inheritance of a Surviving Spouse

by Anna Assad
Several factors determine a spouse's take from the estate.

Several factors determine a spouse's take from the estate.

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A surviving spouse's inheritance in Maine depends on various factors, including whether the deceased spouse has surviving parents or children. Inheritance rules also differ if the deceased spouse died with a will or died intestate, which means he died without leaving a will behind. Maine's probate code, found under Title 18 of the state's laws, decides what a surviving spouse receives from the decedent's estate.

Intestate

Maine's intestate laws decide a living spouse's share if the deceased spouse didn't leave a will. A surviving spouse gets the entire estate if the deceased had no children or living parents. If both or one of the parents of the decedent are alive, the surviving spouse receives the estate's first $50,000 and half of the balance left after subtracting the $50,000. The surviving spouse receives the same share if the couple had children together and the children are living. If the deceased spouse had at least one child with someone other than the surviving spouse, the surviving spouse gets only half of his estate.

Elective Share

Maine allows a surviving spouse to take an elective share of the estate, even if the decedent's will didn't leave the surviving spouse anything or specifically disinherited the surviving spouse. The will must have been made after the two married. The living spouse may elect to take one-third of the balance of the estate after the deduction of funeral expenses and other costs. Other costs include the expense of settling the estate and valid claims made by the decedent's creditors. The surviving spouse has only nine months from the death or six months from the will probate date to file a petition for an elective share.

Below Market Transfers

Maine does consider some types of property transfers the deceased person made during life when calculating the estate's balance to decide an elective share. For example, if a deceased husband gave real estate to another person besides his wife for below market value, the court adds the market value to the estate balance before calculating his wife's elective share. Market value is either the date the transfer became permanent -- the real estate deed's filing date, for example -- or the spouse's death, whichever occurred first. The court may add gifts totaling more than $3,000 the deceased made to the same person during last two years of life to the estate balance for an elective share calculation. Eligible property transfers aren't included by the court if the surviving spouse gave written consent. For purposes of calculating an elective share, the court doesn't consider property that's not subject Maine's probate laws, such as life insurance policy funds.

Homestead Allowance and Exempt Property

A surviving spouse is entitled to the first $10,000 of the estate; this is called a homestead allowance. The allowance is in addition to anything she received under his will, under intestate laws or by elective share. A homestead allowance has priority over other estate claims. For example, a deceased spouse has an estate worth $10,000, and a hospital files a claim for $5,000. The hospital would receive nothing, even though the debt is valid. The surviving spouse gets the $10,000 homestead allowance, wiping out the estate and leaving no money for the hospital. A surviving spouse also receives $7,000 in ownership interest over property that's exempt from creditor actions, such as the family car and personal household items, and she decides what property she wants to use this for. This is in addition to whatever else she receives from the estate. For example, if the decedent had a car worth $7,000, the surviving spouse becomes the automatic full owner of the car with her $7,000 worth of ownership interest, if she decides to put the interest toward the car.

Family Allowance

Maine laws also give a surviving spouse a family allowance. The court gives the surviving spouse money from the deceased spouse's estate to cover living expenses while the estate is being settled. The amount is determined by the court, but must be reasonable and enough to cover the spouse's needs. An allowance may be paid in a lump sum or periodically; creditors of the deceased spouse can't touch money the court is using to pay the surviving spouse a family allowance. However, the allowance payments end within a year if the estate doesn't have enough money to pay all valid creditor claims.

Will Created Before Marriage

Maine's laws differ if a decedent's will was made before the marriage. A surviving spouse is entitled to an estate share based on intestacy laws in this case; however, there are two exceptions to this rule. A surviving spouse doesn't get a share based on intestacy laws If the deceased spouse provided for the surviving spouse in another way, but the court must find the deceased spouse did so instead of leaving the spouse a share in his will. The other exception is if the deceased's will makes it clear that the omission was intentional. The surviving spouse isn't entitled to an elective share in cases where an exception applies, nor she does receive any allowances or exempt property interest.