MRS Title 18-A, Article2: INTESTATE SUCCESSION AND WILLS
Text current through November 1, 2017, see disclaimer at end of document.
Title 18-A: PROBATE CODE
Article2: Intestate Succession and Wills
Table of Contents
Part1. INTESTATE SUCCESSION...... 0
Section2-101. INTESTATE ESTATE...... 0
Section2-102. SHARE OF SPOUSE OR REGISTERED DOMESTIC PARTNER0
Section2-103. SHARE OF HEIRS OTHER THAN SURVIVING SPOUSE OR SURVIVING REGISTERED DOMESTIC PARTNER 0
Section2-104. REQUIREMENT THAT HEIR SURVIVE DECEDENT FOR 120 HOURS 0
Section2-105. NO TAKER...... 0
Section2-106. PER CAPITA AT EACH GENERATION...... 0
Section2-107. KINDRED OF HALF BLOOD...... 0
Section2-108. AFTERBORN HEIRS...... 0
Section2-109. MEANING OF CHILD AND RELATED TERMS...... 0
Section2-110. ADVANCEMENTS...... 0
Section2-111. DEBTS TO DECEDENT...... 0
Section2-112. ALIENAGE...... 0
Section2-113. DOWER AND CURTESY ABOLISHED...... 0
Section2-114. PERSONS RELATED TO DECEDENT THROUGH 2 LINES...0
Part2. ELECTIVE SHARE OF SURVIVING SPOUSE...... 0
Section2-201. RIGHT TO ELECTIVE SHARE...... 0
Section2-202. AUGMENTED ESTATE...... 0
Section2-203. RIGHT OF ELECTION PERSONAL TO SURVIVING SPOUSE.0
Section2-204. WAIVER OF RIGHT TO ELECT AND OF OTHER RIGHTS...0
Section2-205. PROCEEDING FOR ELECTIVE SHARE; TIME LIMIT...... 0
Section2-206. EFFECT OF ELECTION ON BENEFITS PROVIDED BY STATUTE 0
Section2-207. CHARGING SPOUSE WITH GIFTS RECEIVED; LIABILITY OF OTHERS FOR BALANCE OF ELECTIVE SHARE 0
Part3. SPOUSE AND CHILDREN UNPROVIDED FOR IN WILLS...... 0
Section2-301. OMITTED SPOUSE...... 0
Section2-302. PRETERMITTED CHILDREN...... 0
Part4. EXEMPT PROPERTY AND ALLOWANCES...... 0
Section2-401. HOMESTEAD ALLOWANCE...... 0
Section2-402. EXEMPT PROPERTY...... 0
Section2-403. FAMILY ALLOWANCE...... 0
Section2-404. SOURCE, DETERMINATION AND DOCUMENTATION.....0
Section2-405. ESTATE PROPERTY EXEMPT...... 0
Part5. WILLS...... 0
Section2-501. WHO MAY MAKE A WILL...... 0
Section2-502. EXECUTION...... 0
Section2-503. HOLOGRAPHIC WILL...... 0
Section2-504. SELF-PROVED WILL...... 0
Section2-505. WHO MAY WITNESS...... 0
Section2-506. CHOICE OF LAW AS TO EXECUTION...... 0
Section2-507. REVOCATION BY WRITING OR BY ACT...... 0
Section2-508. REVOCATION BY DIVORCE; NO REVOCATION BY OTHER CHANGES OF CIRCUMSTANCES 0
Section2-509. REVIVAL OF REVOKED WILL...... 0
Section2-510. INCORPORATION BY REFERENCE...... 0
Section2-511. TESTAMENTARY ADDITIONS TO TRUSTS...... 0
Section2-512. EVENTS OF INDEPENDENT SIGNIFICANCE...... 0
Section2-513. SEPARATE WRITING IDENTIFYING BEQUEST OF TANGIBLE PROPERTY 0
Section2-514. STATUTORY WILLS...... 0
Part6. RULES OF CONSTRUCTION...... 0
Section2-601. REQUIREMENT THAT DEVISEE SURVIVE TESTATOR BY 120 HOURS 0
Section2-602. CHOICE OF LAW AS TO MEANING AND EFFECT OF WILLS0
Section2-603. RULES OF CONSTRUCTION AND INTENTION...... 0
Section2-604. CONSTRUCTION THAT WILL PASSES ALL PROPERTY; AFTER-ACQUIRED PROPERTY 0
Section2-605. ANTI-LAPSE; DECEASED DEVISEE; CLASS GIFTS...... 0
Section2-606. FAILURE OF TESTAMENTARY PROVISION...... 0
Section2-607. CHANGE IN SECURITIES; ACCESSIONS; NONADEMPTION0
Section2-608. NONADEMPTION OF SPECIFIC DEVISES IN CERTAIN CASES; UNPAID PROCEEDS OF SALE, CONDEMNATION OR INSURANCE; SALE BY CONSERVATOR 0
Section2-609. NONEXONERATION...... 0
Section2-610. EXERCISE OF POWER OF APPOINTMENT...... 0
Section2-611. CONSTRUCTION OF GENERIC TERMS IN WILLS AND TRUST INSTRUMENTS 0
Section2-612. ADEMPTION BY SATISFACTION...... 0
Part7. CONTRACTUAL ARRANGEMENTS RELATING TO DEATH SEE ALSO ARTICLE 6 0
Section2-701. CONTRACTS CONCERNING SUCCESSION...... 0
Part8. GENERAL PROVISIONS...... 0
Section2-801. RENUNCIATION OF PROPERTY INTERESTS...... 0
Section2-802. EFFECT OF DIVORCE, ANNULMENT AND DECREE OF SEPARATION 0
Section2-803. EFFECT OF HOMICIDE ON INTESTATE SUCCESSION, WILLS, JOINT ASSETS, LIFE INSURANCE AND BENEFICIARY DESIGNATIONS 0
Section2-804. ACTIONS FOR WRONGFUL DEATH...... 0
Section2-805. SIMULTANEOUS DEATH...... 0
Section2-806. EFFECT OF CRIMINAL CONVICTION ON INTESTATE SUCCESSION, WILLS, JOINT ASSETS, BENEFICIARY DESIGNATIONS AND OTHER PROPERTY ACQUISITION WHEN RESTITUTION IS OWED TO THE DECEDENT 0
Part9. CUSTODY AND DEPOSIT OF WILLS...... 0
Section2-901. DISPOSITION OF WILL DEPOSITED WITH COURT...... 0
Section2-902. DUTY OF CUSTODIAN OF WILL; LIABILITY...... 0
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MRS Title 18-A, Article2: INTESTATE SUCCESSION AND WILLS
Maine Revised Statutes
Title 18-A: PROBATE CODE
Article2: Intestate Succession and Wills
Part 1:INTESTATE SUCCESSION
§2-101. INTESTATE ESTATE
Any part of the estate of a decedent not effectively disposed of by his will passes to his heirs as prescribed in the following sections of this Code. [1979, c. 540, §1 (NEW).]
SECTION HISTORY
1979, c. 540, §1 (NEW).
§2-102. SHARE OF SPOUSE OR REGISTERED DOMESTIC PARTNER
The intestate share of the surviving spouse or surviving registered domestic partner is: [2003, c. 672, §6 (AMD).]
(1). If there is no surviving issue or parent of the decedent, the entire intestate estate;
[ 2003, c. 672, §6 (AMD) .]
(2). If there is no surviving issue but the decedent is survived by a parent or parents, the first $50,000, plus 1/2 of the balance of the intestate estate;
[ 1979, c. 540, §1 (NEW) .]
(3). If there are surviving issue all of whom are issue of the surviving spouse or surviving registered domestic partner also, the first $50,000, plus 1/2 of the balance of the intestate estate; or
[ 2003, c. 672, §6 (AMD) .]
(4). If there are surviving issue one or more of whom are not issue of the surviving spouse or surviving registered domestic partner, 1/2 of the intestate estate.
[ 2003, c. 672, §6 (AMD) .]
SECTION HISTORY
1979, c. 540, §1 (NEW). 2003, c. 672, §6 (AMD).
§2-103. SHARE OF HEIRS OTHER THAN SURVIVING SPOUSE OR SURVIVING REGISTERED DOMESTIC PARTNER
The part of the intestate estate not passing to the surviving spouse or surviving registered domestic partner under section 2-102, or the entire estate if there is no surviving spouse or surviving registered domestic partner, passes as follows: [2003, c. 672, §7 (AMD).]
(1). To the issue of the decedent; to be distributed per capita at each generation as defined in section 2-106;
[ 1979, c. 540, §1 (NEW) .]
(2). If there is no surviving issue, to the decedent's parent or parents equally;
[ 1979, c. 540, §1 (NEW) .]
(3). If there is no surviving issue or parent, to the issue of the parents or either of them to be distributed per capita at each generation as defined in section 2-106;
[ 1979, c. 540, §1 (NEW) .]
(4). If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased to be distributed per capita at each generation as defined in section 2-106; and the other half passes to the maternal relatives in the same manner; but if there is no surviving grandparent or issue of grandparents on either the paternal or maternal side, the entire estate passes to the relatives on the other side in the same manner as the half; or
[ 2003, c. 672, §7 (AMD) .]
(5). If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, but the decedent is survived by one or more great-grandparents or issue of great-grandparents, half of the estate passes to the paternal great-grandparents who survive, or to the issue of the paternal great-grandparents if all are deceased, to be distributed per capita at each generation as defined in section 2-106; and the other half passes to the maternal relatives in the same manner; but if there is no surviving great-grandparent or issue of a great-grandparent on either the paternal or maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.
[ 2003, c. 672, §7 (AMD) .]
SECTION HISTORY
1979, c. 540, §1 (NEW). 1981, c. 94, (AMD). 2003, c. 672, §7 (AMD).
§2-104. REQUIREMENT THAT HEIR SURVIVE DECEDENT FOR 120 HOURS
Any person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property and intestate succession, and the decedent's heirs are determined accordingly. If the time of death of the decedent or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person failed to survive for the required period. This section is not to be applied where its application would result in a taking of intestate estate by the State under section 2-105. [1979, c. 540, §1 (NEW).]
SECTION HISTORY
1979, c. 540, §1 (NEW).
§2-105. NO TAKER
If there is no taker under the provisions of this Article, the intestate estate passes to the State, except that an amount of funds included in the estate up to the total amount of restitution paid to the decedent pursuant to a court order for a crime of which the decedent was the victim passes to the Elder Victims Restitution Fund established in Title 34-A, section 1214-A. [2011, c. 241, §1 (AMD).]
SECTION HISTORY
1979, c. 540, §1 (NEW). 2011, c. 241, §1 (AMD).
§2-106. PER CAPITA AT EACH GENERATION
If per capita at each generation representation is called for by this Code, the estate is divided into as many shares as there are surviving heirs in the nearest degree of kinship which contains any surviving heirs and deceased persons in the same degree who left issue who survived the decedent. Each surviving heir in the nearest of degree which contains any surviving heir is allocated one share and the remainder of the estate is divided in the same manner as if the heirs already allocated a share and their issue had predeceased the decedent. [1979, c. 540, §1 (NEW).]
SECTION HISTORY
1979, c. 540, §1 (NEW).
§2-107. KINDRED OF HALF BLOOD
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood. [1979, c. 540, §1 (NEW).]
SECTION HISTORY
1979, c. 540, §1 (NEW).
§2-108. AFTERBORN HEIRS
Relatives of the decedent conceived before his death but born thereafter inherit as if they had been born in the lifetime of the decedent. [1979, c. 540, §1 (NEW).]
SECTION HISTORY
1979, c. 540, §1 (NEW).
§2-109. MEANING OF CHILD AND RELATED TERMS
If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person: [1979, c. 540, §1 (NEW).]
(1). An adopted person is the child of an adopting parent and not of the natural parents except that an adopted child inherits from the natural parents and their respective kin if the adoption decree so provides, and except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and either natural parent. If a natural parent wishes an adopted child to inherit from the natural parents and their respective kin, the adoption decree must provide for that status;
[ 1993, c. 686, §1 (AMD); 1993, c. 686, §13 (AFF) .]
(2). In cases not covered by subsection (1), legal parentage of a child is determined under Title 19-A, chapter 61.
(i). [2015, c. 296, Pt. C, §3 (RP); 2015, c. 296, Pt. D, §1 (AFF).]
(ii). [2015, c. 296, Pt. C, §3 (RP); 2015, c. 296, Pt. D, §1 (AFF).]
(iii). [2015, c. 296, Pt. C, §3 (RP); 2015, c. 296, Pt. D, §1 (AFF).]
[ 2015, c. 296, Pt. C, §3 (AMD); 2015, c. 296, Pt. D, §1 (AFF) .]
(3). A divorce or judicial separation does not bar the issue of the marriage from inheriting.
[ 1995, c. 694, Pt. C, §6 (NEW); 1995, c. 694, Pt. E, §2 (AFF) .]
SECTION HISTORY
1979, c. 540, §1 (NEW). 1987, c. 736, §37 (AMD). 1993, c. 686, §1 (AMD). 1993, c. 686, §13 (AFF). 1995, c. 694, §C6 (AMD). 1995, c. 694, §E2 (AFF). 2015, c. 296, Pt. C, §3 (AMD). 2015, c. 296, Pt. D, §1 (AFF).
§2-110. ADVANCEMENTS
If a person dies intestate as to all his estate, property which he gave in his lifetime to an heir is treated as an advancement against the latter's share of the estate only if declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir to be an advancement. For this purpose the property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of death of the decedent, whichever first occurs. If a contemporaneous writing by the decedent establishes the value of the property advanced, that value shall apply. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the intestate share to be received by the recipient's issue, unless the declaration or acknowledgment provides otherwise. [1979, c. 540, §1 (NEW).]
SECTION HISTORY
1979, c. 540, §1 (NEW).
§2-111. DEBTS TO DECEDENT
A debt owed to the decedent is not charged against the intestate share of any person except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's issue. [1979, c. 540, §1 (NEW).]
SECTION HISTORY
1979, c. 540, §1 (NEW).
§2-112. ALIENAGE
No person is disqualified to take as an heir because he or a person through whom he claims is or has been an alien. [1979, c. 540, §1 (NEW).]
SECTION HISTORY
1979, c. 540, §1 (NEW).
§2-113. DOWER AND CURTESY ABOLISHED
The estates of dower and curtesy are abolished. [1979, c. 540, §1 (NEW).]
SECTION HISTORY
1979, c. 540, §1 (NEW).
§2-114. PERSONS RELATED TO DECEDENT THROUGH 2 LINES
A person who is related to the decedent through 2 lines of relationship is entitled to only a single share based on the relationship which would entitle him to the larger share. In cases where such an heir would take equal shares, he shall be entitled to the equivalent of a single share. The court shall equitably apportion the amount equivalent in value to the share denied such heir by the provisions of this section. [1979, c. 540, §1 (NEW).]
SECTION HISTORY
1979, c. 540, §1 (NEW).
Part 2:ELECTIVE SHARE OF SURVIVING SPOUSE
§2-201. RIGHT TO ELECTIVE SHARE
(a). If a married person domiciled in this State dies, the surviving spouse has a right of election to take an elective share of 1/3 of the augmented estate under the limitations and conditions hereinafter stated.
[ 1979, c. 540, §1 (NEW) .]
(b). If a married person not domiciled in this State dies, the right, if any, of the surviving spouse to take an elective share in property in this State is governed by the law of the decedent's domicile at death; provided that no claim under this subsection shall be made to real property located in this State which was conveyed for value by the decedent during his lifetime.
[ 1983, c. 441, §1 (AMD) .]
SECTION HISTORY
1979, c. 540, §1 (NEW). 1983, c. 441, §1 (AMD).
§2-202. AUGMENTED ESTATE
The augmented estate means the estate reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims, to which is added the sum of the following amounts: [1979, c. 540, §1 (NEW).]
(1). The value of property transferred to anyone other than a bona fide purchaser by the decedent at any time during marriage, to or for the benefit of any person other than the surviving spouse, to the extent that the decedent did not receive adequate and full consideration in money or money's worth for the transfer, if the transfer is of any of the following types:
(i). Any transfer under which the decedent retained at the time of his death the possession or enjoyment of, or right to income from, the property; [1979, c. 540, §1 (NEW).]
(ii). Any transfer to the extent that the decedent retained at the time of his death a power, either alone or in conjunction with any other person, to revoke or to consume, invade or dispose of the principal for his own benefit; [1979, c. 540, §1 (NEW).]
(iii). Any transfer whereby property is held at the time of decedent's death by decedent and another with right of survivorship; [1979, c. 540, §1 (NEW).]
(iv). Any transfer made to a donee within two years of death of the decedent to the extent that the aggregate transfers to any one donee in either of the years exceed $3,000. [1979, c. 540, §1 (NEW).]
Any transfer is excluded if made with the written consent or joinder of the surviving spouse. Property is valued as of the decedent's death except that property given irrevocably to a donee during lifetime of the decedent is valued as of the date the donee came into possession or enjoyment if that occurs first. Nothing herein shall cause to be included in the augmented estate any life insurance, accident insurance, joint annuity, or pension payable to a person other than the surviving spouse. [1979, c. 540, §1 (NEW).]
(2). The value of property owned by the surviving spouse at the decedent's death, plus the value of property transferred by the spouse at any time during marriage to any person other than the decedent which would have been includible in the spouse's augmented estate if the surviving spouse had predeceased the decedent to the extent the owned or transferred property is derived from the decedent by any means other than testate or intestate succession without a full consideration in money or money's worth. For purposes of this paragraph:
(i). Property derived from the decedent includes, but is not limited to, any beneficial interest of the surviving spouse in a trust created by the decedent during his lifetime, any property appointed to the spouse by the decedent's exercise of a general or special power of appointment also exercisable in favor of others than the spouse, any proceeds of insurance, including accidental death benefits, on the life of the decedent attributable to premiums paid by him, any lump sum immediately payable and the commuted value of the proceeds of annuity contracts under which the decedent was the primary annuitant attributable to premiums paid by him, the commuted value of amounts payable after the decedent's death under any public or private pension, disability compensation, death benefit or retirement plan, exclusive of the Federal Social Security system, by reason of service performed or disabilities incurred by the decedent, any property held at the time of decedent's death by decedent and the surviving spouse with right of survivorship, any property held by decedent and transferred by contract to the surviving spouse by reason of the decedent's death and the value of the share of the surviving spouse resulting from rights in community property in this or any other state formerly owned with the decedent. Premiums paid by the decedent's employer, his partner, a partnership of which he was a member, or his creditors, are deemed to have been paid by the decedent. [1979, c. 540, §1 (NEW).]
(ii). Property owned by the spouse at the decedent's death is valued as of the date of death. Property transferred by the spouse is valued at the time the transfer became irrevocable, or at the decedent's death, whichever occurred first. Income earned by included property prior to the decedent's death is not treated as property derived from the decedent. [1979, c. 540, §1 (NEW).]
(iii). Property owned by the surviving spouse as of the decedent's death, or previously transferred by the surviving spouse, is presumed to have been derived from the decedent except to the extent that the surviving spouse establishes that it was derived from another source. [1979, c. 540, §1 (NEW).]
[ 1979, c. 540, §1 (NEW) .]
(3). For purposes of this section a bona fide purchaser is a purchaser for value in good faith and without notice of any adverse claim. Any recorded instrument on which the register of deeds shall note by an appropriate stamp "Maine Real Estate Transfer Tax Paid" is prima facie evidence that the transfer described was made to a bona fide purchaser.
[ 1983, c. 441, §2 (AMD) .]
SECTION HISTORY
1979, c. 540, §1 (NEW). 1983, c. 441, §2 (AMD).
§2-203. RIGHT OF ELECTION PERSONAL TO SURVIVING SPOUSE
The right of election of the surviving spouse may be exercised only during the lifetime of the surviving spouse by: [2009, c. 571, Pt. UU, §2 (AFF); 2009, c. 571, Pt. UU, §1 (RPR).]
(a).The surviving spouse; or
[ 2009, c. 571, Pt. UU, §1 (NEW); 2009, c. 571, Pt. UU, §2 (AFF) .]
(b).If the surviving spouse is a protected person, by order of the court in which protective proceedings for the surviving spouse are pending, after a finding that exercise is necessary to provide adequate support for the surviving spouse during the probable life expectancy of the surviving spouse. In a proceeding under this subsection, the surviving spouse's present or future eligibility for public assistance does not diminish the need for support.
[ 2009, c. 571, Pt. UU, §1 (NEW); 2009, c. 571, Pt. UU, §2 (AFF) .]
SECTION HISTORY
1979, c. 540, §1 (NEW). 2009, c. 571, Pt. UU, §2 (AFF). 2009, c. 571, Pt. UU, §1 (RPR).
§2-204. WAIVER OF RIGHT TO ELECT AND OF OTHER RIGHTS
The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement or waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of "all rights," or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance, exempt property and family allowance by each spouse in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement. [1979, c. 540, §1 (NEW).]