Affidavit vs Declaration: Key Differences Explained

Affidavit vs Declaration

In legal proceedings, administrative applications, and business transactions, parties are frequently asked to provide written statements of fact. Two documents serve this purpose: the Affidavit and the Declaration. Although both contain factual statements made by a person with knowledge of the facts, they differ in formality, execution requirements, and the legal frameworks that govern them. Choosing the wrong one can result in a document that the court refuses to accept, that lacks legal effect, or that fails to meet the requirements of a particular proceeding. This guide explains every important distinction.

What Is an Affidavit?

An Affidavit is a written statement of fact made under oath or affirmation. The person making the statement, called the affiant or deponent, swears or affirms that the contents of the document are true. The oath or affirmation is administered by an authorized officer, typically a notary public, who then signs and seals the document to certify that the affiant appeared before them, was identified, and took the oath.

The essential elements of an affidavit are the identity of the affiant, a statement that the affiant is competent to testify to the matters stated, the factual statements organized in numbered paragraphs, the signature of the affiant, the jurat, which is the notary's certification that the oath was administered, and the notary's signature, seal, and commission information.

A jurat differs from an acknowledgment. A jurat certifies that the affiant swore or affirmed the contents of the document in the presence of the notary. An acknowledgment merely certifies that the person who signed the document appeared before the notary and acknowledged that the signature is genuine. For an affidavit, a jurat is required, not an acknowledgment.

What Is a Declaration?

A Declaration is a written statement of fact made under penalty of perjury but without the requirement of an oath administered by a notary. The declarant signs the document and includes a statement, typically under 28 U.S.C. Section 1746 in federal proceedings, that the contents are true and correct under penalty of perjury.

The standard language under 28 U.S.C. Section 1746 for declarations executed within the United States is: I declare under penalty of perjury that the foregoing is true and correct. Executed on [date]. For declarations executed outside the United States, the statute requires the additional language: I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

The essential elements of a declaration are the identity of the declarant, the factual statements, the penalty-of-perjury statement, the date of execution, and the signature of the declarant. No notary, oath, jurat, or seal is required.

Key Differences

Sworn vs Unsworn

The fundamental distinction is that an affidavit is a sworn statement and a declaration is an unsworn statement. The affiant takes an oath or affirmation before a notary public, swearing that the contents are true. The declarant simply signs a statement asserting that the contents are true under penalty of perjury. Both carry the same legal consequence for false statements, namely prosecution for perjury, but the mechanism for establishing the truth obligation differs.

Notarization Requirement

An affidavit requires notarization. The affiant must physically appear before a notary public, present identification, take an oath, and sign the document in the notary's presence. The notary then completes the jurat, applies their seal, and signs the document. This process adds time, cost, and logistical complexity to the execution of an affidavit.

A declaration does not require notarization. The declarant can sign the document anywhere at any time without the involvement of a notary or any other official. This makes declarations significantly more convenient, particularly when the declarant is located in a remote area, is traveling, or needs to submit the document quickly.

Legal Framework

Affidavits are governed by state law. Each state has its own rules for the execution, form, and admissibility of affidavits. State courts generally require affidavits for sworn testimony submitted outside of a courtroom hearing, such as in support of motions for summary judgment, temporary restraining orders, or default judgments.

Declarations in federal court proceedings are governed by 28 U.S.C. Section 1746. This statute provides that wherever a federal law, rule, regulation, or order requires a matter to be supported by a sworn statement, an unsworn declaration under penalty of perjury may be submitted instead. Many states have adopted similar statutes, such as the Uniform Unsworn Declarations Act, which allows declarations to be used in place of affidavits in state court proceedings. However, not all states have adopted such statutes, and some state courts still require affidavits for certain purposes.

Court Preferences

Federal courts uniformly accept declarations under 28 U.S.C. Section 1746 in place of affidavits. The Federal Rules of Civil Procedure do not require notarization for most sworn statements. As a practical matter, declarations are more commonly used in federal litigation because they are easier to execute.

State court preferences vary. Some states accept declarations interchangeably with affidavits. Others require affidavits for specific filings, such as motions for summary judgment or applications for search warrants. A few states do not recognize unsworn declarations at all. Before submitting a declaration in state court, practitioners must verify whether the court accepts declarations or requires affidavits.

Perjury Penalties

Both affidavits and declarations carry the risk of perjury prosecution for false statements. Under federal law, 18 U.S.C. Section 1621 criminalizes perjury in sworn statements, and 18 U.S.C. Section 1746 extends the same penalties to unsworn declarations. State perjury statutes similarly apply to both affidavits and declarations where declarations are recognized.

The penalties for perjury vary by jurisdiction but typically include imprisonment, fines, and a permanent criminal record. In federal court, perjury is punishable by up to five years in prison. In state courts, penalties range from misdemeanor to felony depending on the jurisdiction and the context of the false statement.

Common Uses

Affidavits are commonly used in state court proceedings requiring sworn testimony, real estate transactions, estate planning and probate, immigration proceedings, financial transactions requiring verification, and law enforcement applications for warrants. Self-proving affidavits are particularly important in estate planning. A self-proving affidavit, signed by the witnesses to a will in the presence of a notary, allows the will to be admitted to probate without requiring the witnesses to testify in person.

Declarations are commonly used in federal court filings including motions, responses, and supporting evidence, immigration applications filed with USCIS, administrative proceedings before federal agencies, business transactions where notarization is inconvenient, and international transactions where a US notary is unavailable.

Jurat vs Acknowledgment

As noted above, an affidavit requires a jurat, not an acknowledgment. The distinction matters because many people, including some notaries, confuse the two. A jurat requires the affiant to swear or affirm the truthfulness of the document in the notary's presence. An acknowledgment only requires the signer to acknowledge that they signed the document voluntarily. Using an acknowledgment instead of a jurat on an affidavit can render the affidavit defective.

Declarations do not require either a jurat or an acknowledgment. The penalty-of-perjury statement substitutes for both.

Self-Proving Affidavits in Estate Planning

A self-proving affidavit is a special type of affidavit attached to a last will and testament. It is signed by the witnesses to the will and notarized. The purpose is to establish the validity of the will without requiring the witnesses to appear in court during probate. Every state except the District of Columbia recognizes self-proving affidavits, although the required form varies by state.

A declaration cannot serve as a self-proving document for a will in most states because the probate statutes specifically require a sworn and notarized affidavit. This is one area where the affidavit's formality provides a benefit that a declaration cannot replicate.

When to Use Each

Use an Affidavit When:

• State court rules require a sworn and notarized statement\n- The document is a self-proving affidavit for a will\n- A real estate transaction requires a notarized sworn statement\n- The proceeding specifically requires an affidavit by statute or rule\n- The recipient of the document expects or requires notarization\n- A law enforcement application, such as a search warrant, requires a sworn statement

Use a Declaration When:

• Filing in federal court under 28 U.S.C. Section 1746\n- Filing in a state court that accepts declarations under a state equivalent statute\n- Notarization is impractical due to location, time constraints, or cost\n- Filing immigration applications with USCIS\n- The declarant is located outside the United States and cannot access a US notary\n- Administrative proceedings accept unsworn statements under penalty of perjury

Common Mistakes

• Submitting a declaration in a state court that requires an affidavit, resulting in the document being rejected or stricken\n- Using an acknowledgment instead of a jurat on an affidavit, which can render the affidavit defective\n- Omitting the penalty-of-perjury language from a declaration, which makes it an ordinary unsworn statement without legal force\n- Failing to date the declaration, which is required under 28 U.S.C. Section 1746\n- Including legal arguments or opinions in an affidavit or declaration instead of limiting the content to facts within the personal knowledge of the affiant or declarant\n- Assuming that because both carry perjury penalties, they are always interchangeable. They are not, because the acceptability of each depends on the forum and the applicable rules

Summary

Affidavits and declarations both provide written factual statements that carry the penalty of perjury for false statements. The affidavit is the more formal document, requiring an oath and notarization. The declaration is the more convenient document, requiring only a signature and penalty-of-perjury language. Federal courts accept both interchangeably. State courts vary in their acceptance of declarations. The right choice depends on the forum, the applicable rules, and the practical circumstances of execution.