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15.5 Measuring the Elective SharePrint Page

Maryland law grants the surviving spouse a share of the net estate. Md. Code Ann., Est. & Trusts § 3-203. Arguably, a textual analysis of the Maryland Code indicates that net estate does not include various administrative expenses. One of the canons of statutory interpretation is that a statute should be interpreted so that every word of the statute has a meaning and contributes to the statute’s provisions. Phrased differently, words within a statute should not be interpreted in a way that makes the words superfluous:

“While the process of statutory construction is straight forward and requires resort only to the words of statute when the statute is clear and unambiguous, State Dept. of Assessments and Taxation v. Maryland-National Capital Park and Planning Comm’n, 348 Md. 2, 13, 702 A.2d 690, 696 (1997); Chesapeake and Potomac Telephone Co. of Maryland v. Director of Finance for Mayor and City Council of Baltimore, 343 Md. 567, 579, 683 A.2d 512, 517 (1996), something more is required when the statute is ambiguous. Blitz v. Beth Issac Adas Israel Congregation, 352 Md. 31, 39, 720 A.2d 912, 916 (1998). Where the meaning of the plain language of the statute, or the language itself, is unclear, ‘we week to discern legislative intent from surrounding circumstances, such as legislative history, prior case law, and the purposes upon which the statutory framework was based.’ Lewis v. State, 348 Md. 648, 653, 705 A.2d 1128, 1131 (1998). See also Haupt v. State, 340 Md. 462, 471, 667 A.2d 179, 183 (1995). We are also required to interpret the statute as a whole, for ‘[w]here the statute to be construed is a part of a statutory scheme, the legislative intention is not determine from that statute alone, rather it is to be discerned by considering it in light of the statutory scheme.’ Geico v. Insurance Com’r, 332 Md. 124, 132, 630 A.2d 713, 717 (1993). See Gordon Family Partnership v. Gar on Jer, 348 Md. 129, 138, 702 A.2d 753, 757 (1997); Popham v. State Farm Mutual Insurance Company, 333 Md. 136, 148, 634 A.2d 28, 34 (1993). Moreover, neither the words in the statute nor any portion of the statutory scheme should be read ‘so as to render the other, or any portion of it, meaningless, surplusage, superfluous, or nugatory.’ Geico, 332 Md. At 132, 630 A.2d at 717. See also DeBuck v. Johns Hopkins, 342 Md. 432, 445, 677 A.2d 73, 79 81996); Schlossberg v. Citizen’s Bank, 341 Md. 650, 660, 672 A.2d 625, 629-630 (1996); State of Pagano, 341 Md. 129, 134, 669 A.2d 1339, 1341 (1996); In Re Roger S., 338 Md. 385, 394, 658 A.2d 696, 700 (1995). Nor should we read a statute in a way that is inconsistent with, or ignores, common sense or logic. Frost v. State, 336 Md. 125, 137, 647 A.2d 106, 112 (1994).

Office of People’s Counsel v. Maryland PSC, 355 Md. 1, 22 (1999).
“Net estate” is defined by § 1-101(p) as “the property of the decedent exclusive of the family allowance and enforceable claims against the estate…” Md. Code Ann., Est. & Trusts § 1-101(p). “Enforceable claims” is not defined here. However, use of § 8-105 for a definition of “enforceable claims” renders the use of this phrase in § 1-101(p) superfluous. Section 8-105 lists the order of payment of different types of claims when a personal representative is paying creditors. The statute lists “family allowance” with the other types of claims. Md. Code Ann., Est. & Trusts § § 8-105(a)(5). If § 8-105 is interpreted to provide an enumeration of all “enforceable claims,” the definition of “net estate” then inexplicably repeats one of the 11 items which comprise “enforceable claims.” Such interpretation makes the plain reading of § 1-101(p) absurd.
However, the language of § 8-105 need not be interpreted to define “enforceable claims” in regards to estates. The purpose of § 8-105 is to set forth how various amounts are to be paid when an estate is insolvent. Section 8-103(a) provides a better interpretation of an “enforceable” claim. This section provides that “all claims against the decedent” are unenforceable unless presented within the statutory limit of six months (or, alternatively, two months from notice). Read as a whole, the statutory scheme of the Estates and Trusts Article indicates that an “enforceable claim” does not include an administrative expense. Administrative expenses may arise after the six-month period has run are are traditionally usually submitted after that statutory run.
The Attorney General has approached the issue of determining “net estate” from a different angle. The Attorney General rendered two opinions on the topic: one dated October 15, 2001 and one dated November 8, 2001 both sent to the Register for Queen Anne’s County. The first opinion argued that the elective share estate is to be reduced by administrative expenses. This opinion is based, in large part, on the fact that the electing spouse enjoys the increases and decreases of estate assets during administration. The second opinion qualified that the electing spouse, may not benefit from increases in an estate if, after his or her election, the legatees elect to distribute cash rather than a share of the estate property to the spouse. Under the Attorney General’s formulation the legatees may be able to manipulate how large the elective share amount actually turns out to be. This will be compounded in cases where the legatee is the personal representative, as was the case where the Attorney General rendered the two opinions, and in case where personal representatives litigate whether a surviving spouse was entitled to any share of the estate.