Trust is an important element of any successful marriage, and you may feel betrayed if you discover your husband made a will without your knowledge. You might wonder if it’s even legal for him to do so.
As long as he was mentally stable, wasn't under the influence of anything, wasn't forced into it, and followed your state’s rules when signing it, the will is valid. In this article, we’ll discuss whether your husband can exclude you from his will and how a prenuptial agreement can affect a will.
Key Takeaways
There are no laws prohibiting your husband from making a will and appointing a power of attorney without telling you.
Your husband cannot exclude you entirely from his will, as some laws prevent this.
Oftentimes, a prenup will supersede your husband’s will.
Criteria a Will Must Meet
A husband making a will without his spouse’s knowledge is uncommon but legal. There are only a few criteria your husband’s will has to meet to be valid:
He was of sound mind when he signed the will.
He did not commit fraud.
He was not under the influence of any illegal or legal substances, or forced into signing it.
Everyone involved in the signing of the will followed the state’s rules.
Can Your Husband Exclude You From His Will?
Legally, nothing can stop your husband from making a will without telling you. However, some laws prevent him from excluding you entirely. This is called disinheriting, and it’s often difficult for a spouse to completely cut the other person out of a will.
In addition, to truly be disinherited from a will in most states, you and your husband must both sign a contract agreeing to it. You’d likely already know if he was disinheriting you.
One of the only times someone would choose to disinherit their spouse is if they were getting divorced. But let's say you and your husband are not getting divorced, and he somehow succeeded in disinheriting you (with or without your knowledge). You can challenge the will and still collect a portion of your husband's property if he dies, this is known as spousal elective shares.
How much you’d be entitled to depends on whether you live in a community property state or a common law state.
For example, Connecticut attorney Karl D. Shehu advises that spousal elective shares “entitles her (the wife) to one-third of her husband's estate. Real and personal property.”
He adds, “It will be given to her in a life estate.”
Related: Does a Will Expire?
How Wills Work in Community Property States
The community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Alaska is an opt-in community property state, meaning married couples can choose whether or not to make their property marital property.
In community property states, all property obtained by a married couple throughout their marriage is considered marital property and must be split 50/50. It doesn’t matter whose name the property is under - it legally belongs to both parties.
Here’s a real-world example of how this would work:
You and your husband live in California. You bought a house through a combined effort after marriage, but your name isn’t on the deed. Community property law dictates that you each own half of it because you bought it together while you were married.
Now, let’s say your husband creates a will without telling you but doesn’t leave you his half of the property. If he dies, you still own your half of the property. You can then contest the will in court and make a claim for the other half. You can do the same for any other assets you and your husband acquired together during your marriage.
Community property laws don’t apply to any property that was bought separately, gifted to one person, acquired before the marriage, or acquired during a legal separation. If your husband has such property and names it to other people in his will, there’s not much you can do about it, whether you know about the will or not.
How Wills Work in Common Law States
All other states not listed above are common law states. In common law states, all assets and property you and your husband buy separately belong to the person who bought them or whose name is on the contract.
For example, if you bought a house after you got married, but only your husband’s name is on the deed, the house belongs only to him.
In this case, if your husband created a will, any property belonging to him will go to his designated beneficiaries.
However, even if you didn’t know the will existed, you can still claim an elective share of your deceased husband’s property.
An elective share is a fraction of an estate to which a surviving spouse is entitled. If your husband left less than your state’s elective share to you in his will, you could contest the will in court.
The elective share is usually one-third of your husband’s property, but each state has different laws. You’d have to check with an estate lawyer in your state to determine how much you can inherit if your husband dies.
Can Your Husband Change His Will Without Telling You?
Your husband may have a will you know about but want to change without telling you. This is also legal.
However, if you and your husband have a joint will, he can’t change it without your knowledge. A joint will is a single will signed by you and your husband. If your husband wants to amend a joint will, you must agree to the changes.
The same rules would apply if your husband wanted to revoke the joint will. He would need to inform you of his wishes beforehand, and you would need to agree to the revocation for it to be valid.
On the other hand, if you and your husband have mirror wills, he can change his will without telling you. Mirror wills are similar to joint wills and have nearly identical language and clauses. However, unlike a joint will, which is one document, mirror wills are two separate agreements that only one person in the marriage signs.
Since the two documents are separate, your husband is not legally obligated to inform you of any changes he wants to make to his will.
Can Your Husband Make Someone Else His Power of Attorney Without Your Knowledge?
Even though wills and powers of attorney differ, it’s important to understand how they affect one another.
Wills protect material assets after death, while powers of attorney protect individuals during their lifetimes. Many people create a will and name a power of attorney at the same time to ensure their assets are protected in both life and death.
A power of attorney can’t change someone else’s will. However, they can make financial decisions on the individual’s behalf that could affect your estate.
If your husband made a will without your knowledge, he may have also named someone else as his power of attorney. He may do this if, for example, you have health issues that could affect your decision-making abilities should he become incapacitated.
But just like nothing can stop your husband from creating a will without telling you, nothing can stop him from naming someone else as his power of attorney without your knowledge.
Related: Do Attorneys Keep Copies of a Will?
How Does a Prenup Affect a Will?
If you have a prenup, the clauses laid out in that agreement will often supersede your husband’s will. For example, if there are any conflicts between the two agreements but the probate court determines that you and your husband entered into the prenup knowingly and voluntarily, it may uphold the prenup instead.
However, the court may uphold the will if the beneficiaries can prove that the prenup was unfair, created under duress, or intended to encourage divorce.
All of this is important to understand because if your husband dies and has a will you didn’t know about but you are unhappy with its clauses, you may be able to override it if you have a prenup agreement.
But the probate court doesn’t always uphold a prenup over a will, so you’ll still need to prepare for the possibility of the court deeming the prenup unenforceable. If you do end up going through probate court, you’ll need all your important documents, like wills and prenups, which Trustworthy can help you store safely. Trustworthy's collaboration features allow you to share your prenup with your attorney.
What to Do If You Discover Your Husband’s Secret Will
If your husband has already passed when you discover his will, find out if he had a lawyer. A deceased person’s lawyer can help you interpret their will and understand your rights as a surviving spouse.
If your husband is still alive, talk to him about the will to ensure you both agree on the beneficiaries and division of assets. It is also a good time to create your own will to make difficult decisions easier for your family members when you pass.
Trustworthy (click here to try it for free) can help you find estate attorneys in your state to help you navigate the process of creating a will.
Once you’ve created your will, you can also use Trustworthy’s digital storage platform to keep it and other important documents organized, safe, and secure. This way, family members can easily access them when you pass.
Frequently Asked Questions
When would a prenup be deemed unenforceable in probate court?
Your prenup may not be overridden if the court deems it unenforceable for reasons like it was signed without proper legal representation, the paperwork was not filled in correctly, or not all assets were disclosed.
If my husband cheats, can that void a prenup?
Unless the prenup specifically included this provision, a cheating spouse will not invalidate the prenup.
Is there a legal process for reviewing the fairness of a will after my husband’s death?
Yes, this is called deceased estate litigation over the validity of the will and the beneficiary rights. You will need to contact an estate litigation lawyer.
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