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Can I make a Will Without my Spouse in New Jersey?

Posted on Sun Dec 20, 2020, on Estate Planning

From Our “Ask a Question,” Mailbag: “I would like to do some estate planning in New Jersey without my spouse. Can I make a Will Without my Spouse in New Jersey?”

Can I make a Will Without my Spouse in New Jersey?

Estate Planning Lawyer, Peter Klenk

Can I make a Will Without my Spouse in New Jersey?

Yes, your New Jersey Estate Planning Lawyer can draft your Will without your spouse.  While it is common for spouses to have wills written at the same time, this is not a requirement.  A percentage of the Wills we draft every year is for married persons doing their New Jersey estate planning alone. 

First, What is a Valid New Jersey Will? (Hint, telling your spouse is not on the list).

There are four main requirements for a valid New Jersey Will:

  1. You must have testamentary intent while signing the will;
  2. At the time of signing, you must have had testamentary capacity;
  3. You must sign your Will free of fraud, duress, undue influence or mistake; and
  4. The method used to sign your Will must satisfy New Jersey law.

Not seen on this list is a requirement to notify your spouse.  That is because it is not required.

Common Examples of When You Would Not Inform Your Spouse About Your New New Jersey Will.

Prenuptial agreements are relatively common in second (or third) marriages. Often these agreements give each spouse the freedom to leave Separate Property at death without restrictions. Usually, this is because both spouses have children from their prior relationships.  Logically, these spouses want to give their assets to their children.  Using these facts, let’s give you an example.  

George St. Hadden Heights married Kelly Collingswood. Both have children from their first marriage, and both had an attorney negotiate their prenuptial agreement.  George St. Hadden Heights is free to leave his separate assets any way he wishes, but he is getting a vibe from Kelly that she expects him to leave her the Atlantic County shore home at his death.  Not wanting to cause a fight with Kelly, he has his personal New Jersey Estate Planning Lawyer draft a Will putting the house in trust. His wife is given the right to use the house for two weeks each year but gets no ownership interest. George has no obligation to tell Kelly about this Will.

Another example, Jill Merchantville suspects her second husband, Slick Barrington, is cheating on her. Their prenup says she has the right to leave her separate property to whomever she wishes. She has her New Jersey Estate Planning Attorney draft a new Will giving her property to her sister Jane Linwood. Jill Merchantville has no legal need to inform Slick about the updated Will.

For more information about what is a valid will, follow this link to my article about Estate Planning

Can I  Make a Financial or Medical Power of Attorney Without my Spouse’s Knowledge in New Jersey?

Yes.  In New Jersey, you are free to name a non-spouse as a Medical or Financial Agent.  In New Jersey, it isn’t even that odd for spouses to appoint someone else as Agent. Often the spouse knows about the document.  But, there is no need to tell your spouse.   

For example, Camden Woodland feels strongly about remaining on life support. He has heard about people being removed from support to quickly and wants his medical Agent, to act slowly and conservatively.  Camden’s wife, Zelda Woodland, recently withdrew her mother from life support. Camden felt Zelda moved a bit quickly and decided he didn’t want Zelda to make these decisions for him.  Camden retained his own New Jersey Estate Planning Lawyer and named his sister Polly Woodcliff as his Medical Agent. Polly promised to act slowly and deliberately. Camden feels she will respect his wishes. Mr. Woodland now sleeps better and has no obligation to tell Zelda about this document.

Another example is Woodbury Smith. Woodbury recently filed for divorce in Burlington County, New Jersey, seeking a divorce from his husband, Clinton Haddonfield. The two have stopped speaking, and bad blood exists. Woodbury worries that his current estate planning documents name Clinton as both his Medical and Financial Power of Attorney. During the divorce, if he became ill, Clinton would control his money and medical care. Woodbury hires his own Estate Planning Lawyer to draft a new Living Will and Durable Power of Attorney. He names his brother, Woodstown Smith, as both his Surrogate and Financial Agent. Woodbury now breaths easier. He does not need to inform Clinton about these new documents.

For more information, follow this link to read more about Living Wills and this link to learn more about Durable General Powers of Attorney.

In Conclusion: Can I make a Will Without my Spouse in New Jersey?

I hope you found helpful this short article responding to the question, Can I make a Will Without my Spouse in New Jersey.  I have also included some links for more detailed information. If you are curious about updating your Will, Power of Attorney, or Living Will, contact us and let our Estate Planning lawyers help walk you through what can be a confusing process. In fact, feel free to contact our office for a free consultation. 

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