Can a Husband Make a Will without His Wife?
by Unbundled Legal Help
Making a will while married can be tricky. While the process of creating a will is not inherently difficult, it can become complex when deciding on the type of will, what to put in it, and who has rights to the property in it. This is especially true when married.
Yes, you can make a will without your spouse. However, the viability and effectiveness of that will can be easily challenged since spouses have a statutory right to certain assets that are considered marital property. Exact laws vary state to state.
Making a will without the input of your spouse is typically not a good idea. Instead, it can be more beneficial to have a conversation with them about your desires and speak with your estate planning lawyer (together or separately).
Learn more about creating a will while married below. Let us connect you with an unbundled lawyer to discuss your estate planning and will needs.
What Is a Will?
The most basic function of a will is to provide a plan for the distribution of assets and property after death. In addition, a will allows you to name potential guardians for children. Without any will in place, decisions about what happens to your estate will likely be left to your spouse or a judge.
A Spouse’s Inheritance Rights
While there are a few exceptions, your spouse has the right to inherit at least part of your estate after you pass away. This is true whether or not there is a will in place. However, you can disinherit your spouse if they give consent via a written agreement.
If they do not, then they are entitled to inherit something. The exact property and assets will depend on many factors that involve state laws, your will, and other estate planning mechanisms.
State Laws That Affect Marital Property Distribution and Rights
The marital property laws in each state can have a major effect on how much of your property your spouse is entitled to after you pass away. There are 10 states that follow a “community property” doctrine, while the remaining 40 states are considered “common law” property states.
Before drafting a will, deciding property distribution, etc. it is imperative that you know how the marital property laws established in your state impact property ownership, wills, and other estate planning considerations.
Community Property States
In community property states, your spouse is entitled to at least 50 percent of all marital property in your will. If your will does not allocate half of the marital assets to your spouse, they can challenge it in court to make a claim for their statutory share. The 10 community property states include:
- New Mexico
- Alaska (opt-in)
- Tennessee (opt-in)
Marital property is essentially considered property and assets obtained during the course of the marriage. This includes a lot of property, but not all. Certain property obtained during the marriage in community property states is not considered marital property. They include:
- Life insurance and retirement proceeds
- Gifts and inheritances that are given explicitly to one spouse
- Property purchased before marriage
- Property that both spouses agree belong to one spouse
- Other types of “non-probate” property
This type of property can be willed to another beneficiary of your choosing. Creating an effective will that is unlikely to be challenged can be complicated depending on the complexity of your assets as well as the desires of you and your spouse. Consulting with a proven estate planning lawyer in your area can help to alleviate potential pitfalls.
The remaining 40 states are considered “common law property” states. Unlike community property states, common law states allow spouses to own separate property, even if that property was acquired during the marriage. This does not mean that a person has the right to completely disinherit their spouse though.
In common law states, spouses are entitled to at least one-third of the descendant’s estates. In some cases, it could be as much as 50 percent. This is referred to as an “elective share.” Specific elective share amounts differ from state-to-state.
If you do not leave your spouse the elective share that they are entitled to in your will, they may challenge the will in court and ask for their rightful share. Claims to property must be made within a specific amount of time after the death of a spouse or after the probate process. If they do not, they may lose their right to claim their legal share of the inheritance.
What Happens if There Is No Will?
If the deceased spouse lives in a community property state but does not leave a will behind, then the state’s intestacy laws (laws that govern what to do if there is no estate plan) will determine how much the surviving spouse is entitled to receive.
In most cases, the exact amount they receive will depend on other surviving relatives like children. Nonetheless, in community property states, the surviving spouse is almost always entitled to at least 50 percent of the marital property as well as a share of the separate property.
If there is no will left behind in common law property states, then the surviving spouse will inherit property according to the intestacy laws in their state. Spouses are entitled to at least one-third of the property in the estate. However, in many cases, they receive the entire estate.
Not creating a will can lead to major problems for your spouse as well as your family. It’s typically in your best interest to speak with an estate planning attorney and begin creating a comprehensive estate plan before it’s too late.
Should We Write a Joint Will?
As the name suggests, a joint will consist of one document that both spouses sign. In general, joint wills stipulate that when one spouse dies, the surviving spouse will inherit all assets and property. When the second spouse dies, everything goes to the children.
A joint will may seem like a simple solution, but they are not always a good idea. This is because joint wills are inflexible. If anything significant happens after the death of one spouse, the surviving spouse does not have the authority to make any changes to the will. This can create major issues for spouses as well as children.
Many believe that joint wills are ineffective, and some states no longer allow them for this reason. While a joint will may seem like an easy solution, it is in your best interest to consult with an experienced estate planning lawyer before creating one.
Should I Hire an Estate Planning Lawyer?
Unless you have complex assets, deciding who gets what when you pass away is not that difficult. However, drawing up the paperwork to ensure your wishes are legal and followed is another matter. This is why most people can benefit from hiring an estate planning lawyer.
Hiring a lawyer can be especially helpful when creating a will while married. Benefits of estate planning lawyers include:
- Drafting effective and legal estate planning documents
- Ensuring that your will is legal
- Decreasing the chances of your will being challenged
- Taking care of your children
- Eliminating confusion
- Ensuring that your will and other estate planning documents say what you want
- Providing legal advice regarding beneficiary designations and asset allocation
In addition to helping create a will, estate planning lawyers can help avoiding probate, creating trusts, avoiding or decreasing estate taxes, etc. If you are unsure if you want to hire a lawyer, it can be beneficial to take advantage of a free initial consultation to learn if and/or how an estate planning lawyer can benefit you and your family.
How Much Does it Cost to Make a Will?
In general, making a will is not that expensive. If you have a modest amount of assets and understand the marital property laws in your state, you can even create one yourself (though this is not typically recommended).
Estate planning lawyers can charge anywhere from a few hundred dollars to create a simple will or thousands for a comprehensive estate plan. Exact costs will depend on the state you live in, the size of your estate, the complexity of your estate planning needs, and many other factors.
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