Yes, you can make a will without your husband knowing.
You will need the following:
- mental capacity and testamentary intent at the time of signing your will;
- signing your will free from fraud, duress, undue influence, or mistake; and
- making sure the will is executed in accordance with state laws
- preferably, an attorney to make sure the will is prepared correctly and is valid
In New York, if the will’s execution is supervised by an attorney, there is a presumption that the will was validly executed. Unhappy family members may try to contest your will by saying you signed it under the undue influence of a beneficiary, but this is hard to prove especially when you execute the will when you are still strong and free from long-term illness and medication.
Still, it is best to consult with an attorney when drafting your will because in New York, even if you execute your will without your husband knowing, your husband will still have rights which he can enforce against your estate, in case you exclude or omit him from your will.
Disposing of property in your will
Your state of residence will determine whether your husband can claim property you are trying to dispose of in your will, even if said property is titled only in your name. Community property states are states that declare all property acquired during the marriage as marital property, regardless of how much each spouse contributed to the purchase of said property. Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Alaska (opt-in). Common-law states, on the other hand, determine ownership of property based on the deed, registration paper, or title document, and not when the property was acquired.
For example, you and your husband got married on 2015. During the marriage, you retained separate bank accounts. You bought a house on 2017 with your own money from your separate bank account and paid the mortgage using your own income, as well. The title deed is in your name only. If you and your husband live in California and you try to give this house to your sister via will, your husband can dispute the disposition on the ground that the house is community property because you purchased it when you were already married. On the other hand, if you lived in New York, a common-law state, New York laws would identify you as the sole owner of the house with capacity to dispose of it to your sister via will because your name alone is in the deed.
What are the rights of my husband if I make a will without him knowing?
In New York, your husband has what is called the “spousal elective share” under EPTL § 5-1.1(A), a right of election that gives him $50,000 or 1/3 of your net estate, whichever is higher. Your husband can exercise this right of election if you leave him in your will with anything less than the spousal elective share, within 6 months from the time the executor is appointed but in no case more than 2 years from the time of your death.
The computation of net estate includes testamentary substitutes, such as:
- gifts in contemplation of death
- gifts made one year prior to death
- Totten trust accounts
- joint bank accounts
- property held jointly or payable to another on death
- assets transferred where decedent retained a life estate
- retirement accounts
- assets where decedent continued to hold a general power of appointment
- pay-on-death and transfer-on-death accounts or securities
This spousal elective share can be waived, which waiver is usually done in a pre-nuptial agreement.
Even if you execute your will without your husband’s knowledge, it’s important to consult with an experienced attorney to know what and how you can dispose of your property with least interference from your husband. Making sure all your dispositions are with legal basis, leaving just enough for your husband according to state law, can ensure that the probate of your will can continue smoothly without any delay.
If you need assistance in drafting your will, we, at the Law Offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at email@example.com.