Dying without a valid will in place is never a good idea. In the absence of your testamentary intent your assets are left to the whims of the current intestacy laws of the state in which you reside. In Maryland, those laws changed and the result could leave your surviving adult children or parents with nothing.

As with most states, Maryland follows an order of priority when determining who inherits a deceased person’s assets in the event of intestacy- meaning there is no will. Prior to the effective date of the new intestacy law, October 1, 2023, Maryland’s order of priority was a curious design that forced the surviving spouse to share the estate with just about every other surviving family member.

Prior to October 1, 2023:

• If there was a surviving spouse and surviving minor children the spouse received half of the estate and the rest went to the children.
• If there was a surviving spouse and surviving adult children the spouse received $40,000.00, half of the remaining estate and the surviving children received the rest.
• If there was a surviving spouse, no children but surviving parents, and the marriage lasted fewer than five years, the spouse received $40,000.00, half of the remaining estate and the parents received the rest. Only if the marriage lasted more than five years could the spouse claim the entire estate.

Under the new law:

• If there is a surviving spouse and surviving minor children the spouse still receives half of the estate and the rest goes to the children. In this respect, there has been no change.
• If there is a surviving spouse and surviving adult children who are not the children of the decedent, the person who passed, the spouse now receives $100,000.00, half of the remaining estate and the surviving children receive the rest.
• If there is a surviving spouse and surviving adult children who are the children of the decedent, the person who passed, the spouse now receives the entire estate.
• If there is a surviving spouse, no children but surviving parents, the spouse now receives the entire estate no matter how long the marriage lasted.

Correcting these institutionalized slights against the surviving spouse are not the only changes to the intestacy law in Maryland. Prior to the new law, if there was a surviving domestic partner they were treated slightly better than a stranger of the deceased. Under the new law, a Domestic Partnership Registry will be maintained by the Register of Wills and registered surviving domestic partners will be treated the same as spouses in regards to intestate estates. This results in a limited exemption for inheritance tax for the surviving partner in the case of a jointly owned primary residence. Proof of such partnership is required at death but a registered partner would automatically qualify. Previously, a surviving partner was subject to a ten percent inheritance tax on all other assets but now, if the surviving partner is in a registered partnership the surviving partner is exempt from inheritance tax just like a surviving spouse.

While children in general received something of a demotion in the intestate hierarchy, the opposite is true of step-children. Previously, in a situation where the decedent left no surviving spouse, no children, no parents, no siblings, no aunts, and no uncles, the next in line to inherit would be the great-grandparents or their descendants which would mean great aunts and great uncles. An especially bizarre occurrence if the decedent had step-children. The blended family has become a norm, not an outlier. This prospect of an estate being inherited by an individual, who, in many cases, is virtually unknown to the decedent has been rectified in the new statute. Now, in a situation where the decedent left no surviving spouse, no children, no parents, no siblings, no aunts, and no uncles, the next in line to inherit will be step-children, if any.

The new law also removes unnecessary and stigmatizing terminology used to describe children and grandparents. Previously, the Maryland intestate statute defined children born out of wedlock as “illegitimate” and children born in wedlock as “legitimate”. The new Maryland intestate statute removes those needless qualifiers.

Similarly, the new Maryland intestate statute removes the obtuse and outdated descriptors “maternal” and “paternal” for grandparents and instead describes them in terms of “sets”.

What should the residents of the great state of Maryland who do not have a will do with this information? To the surprise of hopefully no one the answer is simple- make a will.

The key takeaway here is that the power of testamentary intent, the freedom to allocate the distribution of your assets according to your wishes, the control to design the future for your family and loved ones beyond your existence exists in the form of estate planning. Those who fail to utilize this potential leave that future to the whims of their legislature.

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