Can My Husband Make a Will Without My Knowledge?

Trust is an important element of any successful marriage, and you may feel betrayed if you discover your husband made a will without your knowledge. You might wonder if it’s even legal for him to do so.

As long as he was mentally stable, wasn't under the influence of anything, wasn't forced into it, and followed your state’s rules when signing it, the will is valid. In this article, we’ll discuss whether your husband can exclude you from his will and how a prenuptial agreement can affect a will.

Key Takeaways 

• There are no laws prohibiting your husband from making a will and appointing a power of attorney without telling you.

• Your husband cannot exclude you entirely from his will, as some laws prevent this. 

• Oftentimes, a prenup will supersede your husband’s will.  

Criteria a Will Must Meet

A husband making a will without his spouse’s knowledge is uncommon but legal. There are only a few criteria your husband’s will has to meet to be valid:

• He was of sound mind when he signed the will.

• He did not commit fraud.

• He was not under the influence of any illegal or legal substances, or forced into signing it.

• Everyone involved in the signing of the will followed the state’s rules.

Can Your Husband Exclude You From His Will?

Legally, nothing can stop your husband from making a will without telling you. However, some laws prevent him from excluding you entirely. This is called disinheriting, and it’s often difficult for a spouse to completely cut the other person out of a will.

In addition, to truly be disinherited from a will in most states, you and your husband must both sign a contract agreeing to it. You’d likely already know if he was disinheriting you.

One of the only times someone would choose to disinherit their spouse is if they were getting divorced. But let's say you and your husband are not getting divorced, and he somehow succeeded in disinheriting you (with or without your knowledge). You can challenge the will and still collect a portion of your husband's property if he dies, this is known as spousal elective shares. 

How much you’d be entitled to depends on whether you live in a community property state or a common law state.

For example, Connecticut attorney Karl D. Shehu advises that spousal elective shares “entitles her (the wife) to one-third of her husband's estate. Real and personal property.” 

He adds, “It will be given to her in a life estate.”   

• Related: Does a Will Expire?

How Wills Work in Community Property States

The community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Alaska is an opt-in community property state, meaning married couples can choose whether or not to make their property marital property.

In community property states, all property obtained by a married couple throughout their marriage is considered marital property and must be split 50/50. It doesn’t matter whose name the property is under - it legally belongs to both parties.