Maryland is not a community property state at death. It is a common law property state, which means ownership of a house, account, or vehicle is determined by whose name is on the title or registration, not by an automatic 50/50 split between spouses. When one spouse dies, that title-based ownership controls what goes through probate and what the surviving spouse actually receives, subject to a set of protections built into Maryland law.
How Maryland Treats Property Between Spouses
If a bank account, vehicle, or piece of real estate is titled in one spouse’s name alone in Maryland, that spouse is the sole legal owner during the marriage. Maryland Family Law § 4-301 reinforces the point by providing that one spouse’s property is generally not liable for the other spouse’s debts, and premarital debts remain the responsibility of the spouse who took them on.1Maryland General Assembly. Maryland Family Law Code 4-301 – Protection From Liability
That is different from community property states like California or Texas, where most assets earned or acquired during a marriage belong equally to both spouses regardless of title. In Maryland, co-ownership between spouses happens only when the asset is retitled or the second spouse is added to the account. When one spouse dies, only assets titled in the decedent’s name alone go through probate. Property held jointly or with a beneficiary designation passes outside probate.
What a Surviving Spouse Can Claim Against a Will
Even though Maryland treats property as individually owned, it does not allow a spouse to be entirely written out of an estate. A right called the elective share lets a surviving spouse reject the terms of the will and instead take a fixed portion of the estate. Under Estates and Trusts § 3-403, the amount turns on whether the decedent left children or other descendants:2Maryland General Assembly. Maryland Code Estates and Trusts 3-403 – Amount of Elective Share
- With surviving children or descendants, the elective share is one-third of the estate subject to election, reduced by the value of spousal benefits the survivor already receives.
- Without surviving children or descendants, the elective share is one-half of the estate subject to election, again reduced by spousal benefits.
Spousal benefits are things the surviving spouse already receives through other channels: beneficiary designations, joint account ownership, life insurance payouts. Those reduce the elective share so the spouse doesn’t collect twice.
The Augmented Estate
Maryland doesn’t limit the elective share to probate assets. Under Estates and Trusts § 3-404, the estate subject to election includes the probate estate plus revocable trusts created by the decedent, qualifying joint interests (including tenancy-by-the-entirety property), and certain irrevocable transfers where the decedent kept possession, income rights, or the power to change beneficiaries.3Maryland General Assembly. Maryland Code Estates and Trusts 3-404 – Estate Subject to Election Payable-on-death and transfer-on-death designations the decedent controlled are also counted.4Maryland General Assembly. Maryland Code Estates and Trusts 3-401 – Definitions The breadth of this definition is the point: it stops a spouse from being cut out by last-minute transfers into trusts or new beneficiary designations.
Deadline to Elect
A surviving spouse must file the elective share claim by the later of nine months after the decedent’s death or six months after the first appointment of a personal representative.5Maryland General Assembly. Maryland Code Estates and Trusts 3-407 – Timing of Election; Withdrawal Miss it, and the right is gone. A spouse who suspects the will shortchanges them should act quickly.
What a Surviving Spouse Inherits Without a Will
When a Maryland resident dies without a valid will, intestacy law decides who gets what. Under Estates and Trusts § 3-102, the surviving spouse’s share depends on the family structure:6Maryland General Assembly. Maryland Code Estates and Trusts 3-102
- No surviving children or other descendants: the surviving spouse inherits the entire intestate estate.
- A surviving minor child: the spouse receives one-half, with the remainder passing to the decedent’s descendants.
- No minor child, but the decedent left descendants who are not also descendants of the surviving spouse: the spouse receives the first $100,000 plus one-half of the remaining estate.
That third category matters in blended families. If your spouse had children from a prior relationship and none are minors, your intestate share is capped at $100,000 plus half the balance; the rest goes to your spouse’s children. When all of the decedent’s children are also the surviving spouse’s children and none are minors, current law gives the spouse everything.6Maryland General Assembly. Maryland Code Estates and Trusts 3-102 Intestate administration is overseen by Maryland’s Orphans’ Court.7Maryland Courts. Orphans’ Court
Property That Passes to the Spouse Outside Probate
Some property passes to a surviving spouse without going through probate at all. Under Estates and Trusts § 14-113, personal property owned by both spouses and acquired during the marriage is presumed to be held as tenants by the entirety. For real estate, a deed to both spouses typically creates the same form of ownership.
When one spouse dies, the surviving spouse automatically becomes the sole owner of tenancy-by-the-entirety property by operation of law at the moment of death. Joint tenancy with right of survivorship works the same way for assets like bank accounts. Both arrangements override contrary instructions in a will, and both are generally shielded from the decedent’s individual creditors.
Even for a vehicle titled solely in the decedent’s name, a surviving spouse may be able to avoid full estate administration. The Maryland Motor Vehicle Administration allows a surviving spouse to transfer a vehicle title using a simplified exemption form, a death certificate, and proof of marriage, provided the decedent owned no more than two motor vehicles and the surviving spouse is the sole heir.8Maryland Department of Transportation Motor Vehicle Administration. Titling – Deceased Owner
The Capital Gains Cost of Living in a Common Law State
Being in a common law state rather than a community property state carries one significant tax consequence for surviving spouses. When someone dies, appreciated assets generally receive a “step-up” in basis to fair market value, which erases capital gains that built up during the decedent’s lifetime.
In community property states, both halves of community property receive that step-up when one spouse dies. IRC § 1014(b)(6) treats the survivor’s half as though it too were acquired from the decedent, so the entire asset gets a new basis equal to its full fair market value.9Office of the Law Revision Counsel. 26 U.S. Code 1014 – Basis of Property Acquired From a Decedent In Maryland, only the decedent’s share gets stepped up. The surviving spouse’s half keeps its original cost basis.
Take a couple who bought a home for $200,000 that is now worth $600,000. In a community property state, the whole property gets a new basis of $600,000 when one spouse dies. In Maryland, only the decedent’s half is stepped up, giving the survivor a total basis of $400,000 — the survivor’s original $100,000 half plus the decedent’s $300,000 stepped-up half. Sell that home later in Maryland, and the surviving spouse faces potential capital gains tax on up to $200,000 of appreciation that would have been tax-free in a community property state.
Couples who moved to Maryland from a community property state should know that assets can retain their community property character after the move, as long as they were not retitled in a way that destroys that status. Under IRS Publication 555, community property laws of the original state generally continue to apply to property earned while living there.10Internal Revenue Service. Publication 555, Community Property Preserving that classification could entitle the surviving spouse to the full basis step-up, so it is worth checking with a tax professional before retitling anything.
What the Surviving Spouse Owes in Maryland Death Taxes
Maryland is one of the few states that imposes both an estate tax and a separate inheritance tax, but a surviving spouse is largely insulated from both.
The Maryland inheritance tax rate is 10% of the clear value of inherited property.11Maryland General Assembly. Maryland Tax – General Code 7-204 – Rates Under Tax-General § 7-203, no inheritance tax is owed on property passing to close family, including a surviving spouse, parents, grandparents, stepparents, children, stepchildren and their descendants, siblings, and the spouse of a child or descendant of a child. The 10% rate falls on more distant relatives, friends, and unrelated beneficiaries. Property passing to any single person valued at $1,000 or less is also exempt regardless of relationship.12Maryland General Assembly. Maryland Tax – General Code 7-203 – Exemptions
The Maryland estate tax applies to estates valued above $5 million, with rates from 0.8% to 16% depending on the total. The estate tax return is due within nine months of death, though the Comptroller of Maryland may grant an extension of up to six months if the request is made in writing before the original due date.13Register of Wills. Maryland Estate Tax Filing Requirements and Extensions The Maryland threshold is lower than the federal estate tax exemption, so some estates owe Maryland estate tax even when no federal tax is due. The federal exemption is scheduled to decrease significantly in 2026 due to the sunset of the Tax Cuts and Jobs Act, which could bring it closer to the Maryland threshold for larger estates. An estate can owe both estate and inheritance tax, though inheritance tax paid is generally credited against estate tax liability.