Wills and Elections Against the Will
You can improve on the intestate estate outcome by unilateral action. You can make a Will or a new Will; or revoke a Will that leaves everything to your now estranged spouse. We encourage clients to consider taking these actions early on in the process.
However you cannot freely disinherit your spouse. In each local jurisdiction the surviving spouse can renounce the gift, if any, to the spouse in the Will and elect to take a statutory share of the estate. The surviving spouse is entitled to claim an elective share as follows:
Maryland – an allowance of $5,000 and one-half of the net probate estate if there are no surviving issue of the decedent and one-third if there are surviving issue. Md. Code, Estates and Trusts Article, Sec. 3-201 and 3-203.
Virginia – one-half of the augmented estate if there are no surviving issue of the decedent and one-third of the augmented estate if there are surviving issue. Va. Code Sec. 64.1-16.1.
District of Columbia – the surviving spouse who renounces the gift under the Will is entitled to the amount he or she would take if the decedent did not make a Will. D.C. Code Sec. 19-113.