From Our “Ask a Question,” Mailbag: “I would like to do some estate planning in Pennsylvania without my spouse. Can I make a Will Without my Spouse in Pennsylvania?”
Estate Planning Lawyer, Peter Klenk
Can I make a Will Without my Spouse in Pennsylvania?
Yes. You can have your Pennsylvania Estate Planning Attorney can draft a Valid Pennsylvania Will and not tell your spouse. In most cases, spouses do draft wills together. But, there are plenty of married Pennsylvania people who decide for one reason or another to have their own estate planning lawyer.
First, What is a Valid Pennsylvania Will? (Hint, notifying your spouse is not on the list).
Valid Pennsylvania Wills must satisfy four main requirements:
- At the time of signing the Will, you must have testamentary intent;
- You must have had testamentary capacity;
- There must not be fraud, duress, undue influence or mistake; and
- The method used to sign your Will must satisfy Pennsylvania law.
Not seen on this list is a requirement to notify your spouse. Informing your spouse about a Will is not a requirement for a valid Will.
Common Examples of When You Would Not Inform Your Spouse About Your Pennsylvania Will.
Second and third marriages are not uncommon. Learning by doing, couples often start their second marriage with a prenuptial agreement. These agreements can cover many subjects, but a common theme for those with children from the prior marriage is that each spouse is free to leave their separate property free of the other spouse’s claim.
For example, Sophia Center City marries Doug Fishtown. Both have minor children from their first marriage. To protect the assets they brought into the marriage from a potential divorce, they signed a prenuptial agreement. After a few years of marriage, Sophia Center City suspects that Doug is more interested in her money than herself. Not wanting to cause a fight, she hires her own Center City Estate Planning Lawyer to draft a Will. In the Will, Sophia forms trusts to hold her assets for her children. She names her brother as executor, her sister as trustee, and places her mother in charge of her funeral arrangements. Sophia has no legal obligation to inform Doug about this new Will.
Another example, Bob and Jill Manayunk have been married 30 years. Jill has Alzheimer’s. The disease has made her paranoid, and she sometimes lashes out. Bob hired his own Philadelphia Estate Planning Lawyer to create a new Will. In the Will, Bob forms a protective trust for Jill. If he dies first, the real estate and money are held in the trust to provide for Jill. Their eldest child serves as the trustee. Bob has no obligation to inform Jill about this new 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 Pennsylvania?
Yes. Pennsylvania law allows a married person to name a non-spouse as a Medical Agent (sometimes called Surrogate) or Financial Agent. Even in happy marriages, it is not uncommon In Pennsylvania to give these powers to non-spouses.
For example, Jake Chestnut Hill has strong opinions about medical care. He saw his mother and father suffer much longer than he thought proper before they died, and wants a Medical Power of Attorney who will not be shy about “pulling his plug.” His spouse, Robert Port Richmond, has said he disagrees with Jake. If he is given the power of Medical Power of Attorney, he will use this power to keep Jake alive as long as possible. To have his wishes respected, Mr. Chestnut Hill has his Philadelphia Estate Planning Lawyer draft a Medical Power of Attorney and Living Will that names his sister as his Surrogate. To Jake’s satisfaction, his sister promises to unplug him as quickly as she can. Jake Chestnut Hill has no obligation to inform Robert Port Richmond about this document.
Another example is Betty Brewerytown. She discovered her husband, Ron Rittenhouse, has been gambling uncontrollably. Concerned that Ron is named her Financial Agent in her Durable Power of Attorney, Betty has her Philadelphia Estate Planning Lawyer draft a new Power of Attorney naming her Brother, Bob Brewerytown. If she becomes ill, Bob will manage her money, not Ron. Betty has no obligation to tell Ron about her new document.
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 Pennsylvania?
I hope you found helpful this short article responding to the question, Can I make a Will Without my Spouse in Pennsylvania. 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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