SHIMP v. HUFF Court of Appeals of Maryland, 1989, 315 Md. 624, 556 A.2d 252, 85 A.L.R.4th 395
Fact:
Lester and Clara Shimp married in 1941. On May 8, 1974, they executed an instrument titled “Last Will and Testament of Clara V. Shimp and Lester Shimp.”, presenting that this will is an irrevocable act and may not be changed. When Clara died in 1975, she did not own property solely in her name and possessed no probate estate. Lester did not offer the will for probate following his wife’s death and filed a petition in the Circuit Court seeking declaratory relief and requesting the right to execute a new last will and testament. The court found that the will was revocable but that the contract under which the will was executed might be specifically enforced in equity or damages recovered upon it at law. Consequently, Lester appealed to the Court of Special Appeals. Later, Lester married Lisa Mae. Lisa and Lester had not entered into any marital agreement waiving Lisa’s marital rights and when Lester died, she sought payment of a family allowance and filed an election for her statutory share of Lester’s estate. However, the court concluded that since Lester was merely a trustee for the property, there was no estate from which Lisa could take an elective share and the court also found that Lisa could not claim a family allowance because there were no estate assets from which the allowance could be paid. Lisa appealed to the Court of Special Appeals.
Issue:
Whether a second wife is entitled to receive an elective share and a family when her late husband had previously contracted by virtue of a joint will with his first wife
Rule:
§ 3-203 (a)
Instead of property left to him by will, the surviving spouse may elect to take a one-third share of the net estate if there is also a surviving issue, or a one-half share of the net estate if there is no surviving issue
§ 3-201
(As to the family allowance) a surviving spouse is entitled to “an allowance of $2000 for his personal use
§ 3-204
The right to receive the elective share is a personal right, which cannot waived by the unilateral acts of a deceased spouse.
Public policy
The surviving spouse’s claim to an elective share should be afforded priority over the claims of beneficiaries of a contract to make a will.
§ 3-201 and § 8-105
A claim for a family allowance is to be accorded priority over the claims of both ordinary contract creditors and legatees under a will.
Application:
The plaintiff claims that she is entitled to take an elective share and a family allowance under Maryland Code 3-201 and 3-203. The court found that both parties entered a binding contract when they executed a joint will and the effect of that contract on Lester’s ability to alter the testamentary plain contained in that joint will. Their agreement was reached with consideration therefore, this joint seems to be a contract. However, the court found it more reasonable to consider beneficiary as legatees rather than creditors. The relevant statutes and rules of this case are empowering a second wife’s claim that “The right to receive the elective share is a personal right, which cannot be waived by the unilateral acts of a deceased spouse.” And “the surviving spouse’s claim to an elective share should be afforded priority over the claims of beneficiaries of a contract to make a will.” Thus, plaintiff’s right to a family allowance and an elective share is protected.
Conclusion:
Affirmed.