Can My Spouse and I Have A Joint Will Or Do We Need Our Own?

It is a common scenario: A married couple decides to get their estate papers in order, and when they get to the will, they see no reason why they cannot write a joint will. After all, they have had all the kids they plan on having or do not plan on having kids.

The couple plan on being together the rest of their lives and have agreed that one will inherit the other’s assets when the first one dies. After that, the money will either go to a charity or another place they have agreed upon.

Together, they figure, there is no sense in making things more complicated than necessary.

Unfortunately, their very wish to make things easy may create complications later on when it is time to execute the will. Let’s take a look at why.

Life Changes Affect the Resiliency of Your Last Will

Couples rarely pass away at the same time. In many cases, one spouse may live twenty years longer, or more than their spouse. During that time, they may remarry. If they are young when one partner passes, and they remarry, family dynamics are likely to change and grow over time drastically. 

Regardless, while the transfer of assets to the remaining partner is pretty clear, the desire of where assets should go after that point could completely change after one partner passes.  

Another common situation is when couples that once felt they were meant to be together forever, end up divorcing. In these instances, desires for how assets should be bequeathed often differ and it becomes impractical to share a will.

Here is what you will want to remember for either situation above or other similar scenarios.  Wills can be rewritten while both partners are alive. But when one partner has already passed, the original will ends up staying active or being tied up in court for an extended time. If you and your spouse share a will, you will want to make sure it is drafted to accommodate the surviving spouses needs as best as possible.  

Legal Challenges Concerning Married Joint Wills

Some states will not recognize the validity of a joint will.

This could be a problem if one spouse dies and moves to a state that does not recognize the legality of the will. Even in the states where a joint will is legally binding, the will may be challenged more readily than if it was a will for a single person.

For example, a couple may be in a second marriage when they write the will. Any former spouses, and especially children from previous marriages, may believe they are due a more significant part of the deceased person’s assets and contest the will. While the courts may try to see if they can find a solution, it is not likely they will decide something that is entirely in line with the wishes of either party that signed the will.  

It Happens: An Example of a Joint Will Going Bad

One of the biggest challenges created by a joint will is that it leaves the surviving partner’s hands tied about making any changes in the future, even if the changes are something that the deceased partner would have agreed to if alive.

For example, let’s say the partners agree that the surviving spouse is to receive everything, and then when that spouse dies, the estate is to be divided up among the children.

The first spouse dies. Now, the living partner could face a difficult problem. For example, what if one of the adult children needed a life-saving medical procedure, but the only way to give the adult child the money would be to give him his inheritance early? 

This financial assistance could not be provided because the will states the inheritance is only to be given upon the death of the second spouse. To legally change it would tie the will up in court for some time, and the person needing the medical help could die in the meantime. Moreover, the now untimely death of one of the people set to inherit assets would then change other parts of the will and could cause even greater distress among the family members.

Poorly planned out wills might be easy to put together but are often full of un-thought-of situations such as the one above. It is critical to work with a professional estate planning attorney to avoid unforced errors like the ones described above.

Ask Us how to Structure Your Last Will & Testament

We understand that every life situation is different. There are so many ways a couple can go about creating wills that it can be confusing to know what you need vs what you want.  Our experienced team will work with you to find the best solutions for your particular situation.

Contact us today to schedule a consultation.

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