Is a Spouse Obligated to Notify the Other Spouse of Estate Plans?

July 30, 2020

In short, the answer is no. While unusual, a spouse has no obligation of notification to the other spouse that any type of estate plan- being the construction of a trust, drafting of a will or any health care directives have been executed.

Whether married or single a person can create a will as long as:

1. He signs the will with testamentary intent;

2. He has the mental capacity to understand what he is signing;

3. He was free from fraud, duress, undue influence and mistake; and

4. Two witnesses were present and signed the attestation clauses.

Keep in mind that while a spouse does not need to notify the other spouse that estate planning documents were created, in Maryland, a spouse cannot disinherit the other spouse. The spousal elective share law grants the surviving spouse the right to elect to take a percentage of the deceased spouse’s estate even if the will does not name that spouse as a beneficiary.

Currently in Maryland if there are surviving children, the spouse may elect to take 1/3 of the deceased spouse’s net estate. If there are no children, the surviving spouse may elect to take ½ of the net estate.

It is more common to see a spouse name an adult child as agent under a Power of Attorney, whether financial or health care, and not notify the other spouse of this decision. Sometimes, the other spouse is not of sound mind and would not be able to serve in this capacity and other times the spouse simply does not trust that the person would be able to serve if put in difficult circumstances but does not want to hurt the spouse’s feelings. They feel more confident that the adult child could handle difficult situations better than the spouse.

Estate planning attorneys are under attorney-client confidentiality requirements and must adhere to a client’s request regarding non-disclosure to a spouse. For more information on private and secure estate planning, please contact Stouffer Legal at 443-470-3599 in the Greater Baltimore area.

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