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

From Our “Ask a Question,” Mailbag: “I think my spouse is doing estate planning in New Jersey without me. Can my spouse make a Will Without my Knowledge in New Jersey?”

Estate Planning Lawyer, Peter Klenk

Can my Spouse Make a Will Without my Knowledge in New Jersey?

Yes, your New Jersey spouse can sign a valid will without your knowledge.  If you are happily married, this would be unusual, but not illegal. There are circumstances when not telling your spouse about a Will does occur.

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

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

1. The person must have testamentary intent while signing the will;
   • Did your spouse want to sign a Will? Or was this document meant to serve another purpose?
2. At the time of signing, the person must have had testamentary capacity;
   • At the time of signing, did your spouse understand what he was signing?
3. The person must sign free of fraud, duress, undue influence or mistake; and
   • Did someone manipulate your spouse?
4. The method used to sign the Will must satisfy New Jersey law.
   • Every state has rules about what makes a valid Will, does this Will satisfy New Jersey’s laws?

Absent from this list is the need to inform a spouse about the Will.

Common Examples of When Spouses Are Not Informed About a New Will While Doing Estate Planning in New Jersey.

For example, if Doug Moorestown is married to Maria Moorstown, and Maria has Alzheimer’s.  A New Jersey judge has ruled Maria is incapacitated. As part of Doug’s estate planning New Jersey, he may have his New Jersey Estate Planning Lawyer draft a Will forming a trust for Maria. If he dies, Maria would benefit from the trust but have no legal control over the trust. Further, her future creditors would also have no access. Doug names a trusted person or a trust company to manage the trust assets and pay Maria’s bills.  Doug has no obligation to tell Maria about this trust.

Another example, suppose John Medford has begun the process of divorcing his spouse Suzy Medford.  As John and Suzy are not on speaking terms, John wants to make sure she receives as little of his assets as possible.  Working with his New Jersey Estate Planning Lawyer, he formulates a new Will giving her the least amount he must. He gives the rest to a trust for the Medford children, naming his sister as Trustee. John Medford has no obligation to inform Suzy Medford about this new Will.

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

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

Yes, even while happily married, your spouse is free to name another person as a Medical or Financial Agent.  There is no requirement to appoint a spouse.  There is also no requirement to inform a spouse about a Medical (sometimes called a Medical Directive and Living Will) or Financial Power of Attorney.  

Indeed, there are circumstances where naming a non-spouse as Agent is typical.

For example, Barbara Glassboro has strong feelings about what she calls, “pulling the plug.”  She witnessed her mother linger for months before dying, and wants to end her medical coverage quickly should she be deemed terminal. Barbara Glassboro’s husband, James Glassboro, has stated that under no circumstances would he authorize Barbara removed from life support. Knowing this, Barbara names her sister Janet as her Medical Power of Attorney.  Janet now has the right to speak for Barbara on all medical matters, not James. Barbara has no legal obligation to inform James about her decision.

Another example, Kolton Voorhees is filing for divorce from his spouse, Sparkles Voorhees.  During the divorce, should Kolton become incapacitated, he does not want Sparkles to have control over his assets. Further, Kolton does not want her speaking for him medically. As the divorce has taken a nasty turn, he certainly doesn’t want her to have the ability to refuse him medical care.  He has his New Jersey Estate Planning Lawyer draft a new Medical Power of Attorney and Living Will as well as a new Financial Durable Power of Attorney. Kolton names his sister, Jennifer Sicklerville, as both Medical and Financial Agent.  Should Kolton now become ill, his sister would control his money and medical care, not Sparkles. Kolton need not tell Sparkles about these changes.

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 my Spouse make a Will Without my Knowledge in New Jersey?

I hope you found helpful this short article responding to the question, Can my Spouse make a Will Without my Knowledge 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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