One question married couples ask when creating their last will and testament is whether to make one will that covers both spouses—called a joint will—or two separate wills. Historically, joint last wills and testaments were used to save time and money, as it was easier to create one document rather than two separate ones. With technological advances, that advantage is irrelevant today. When creating a joint last will and testament, couples have to weigh the advantages and disadvantages to make sure it is the best option for them.
Joint Last Will and Testament
Joint wills are often confused with mutual wills. While both joint wills and mutual wills are created by two or more people—usually a married couple—that's where the similarity ends. A joint will is a single document signed by both partners, whereas mutual wills are two separate documents. Both are based on the same guiding principal: both partners want to leave their marital assets to each other and then to their children.
Under the provisions of a joint last will and testament, each partner bequeaths their marital assets to the other. When one spouse dies, the surviving spouse inherits everything. The will goes through probate and subsequently becomes the last will and testament of the surviving spouse. When the second spouse dies, the couple's children inherit everything.
Today, some states, such as Wisconsin, no longer allow joint last wills and testaments and refuse to enter them into probate. If you and your spouse are contemplating drawing up a joint last will and testament, check your state laws.
In essence, a joint last will and testament is a legal contract whose terms are agreed upon by both parties. One of the tenants of a joint will is a provision that neither spouse can change or revoke the will without the consent of the other—which means when one dies, the will cannot be changed. This is unlike the terms of a conventional will, which is revocable. However, the couple can mutually consent to make changes to the document while they're both still alive.
Joint last wills and testaments were designed to pass marital assets to the couple's children, giving both parties peace of mind knowing what would happen to their marital assets after they died. This was a joint will's primary advantage, which made it a very popular estate-planning tool, particularly for couples concerned about what would happen to their assets should their surviving spouse remarry. Under the terms of a joint last will and testament, the surviving spouse cannot change the disbursement terms and leave the marital assets to someone else. No matter what happens, the children don't have to worry that their inheritance will go to their new stepparent.
The irrevocable nature of a joint will is also one of its biggest disadvantages. Life circumstances can change drastically after one spouse dies, yet the surviving spouse remains bound to the terms of the joint will. The estate can be tied up for years until the second spouse dies, and the surviving spouse cannot change the terms of the original will to reflect the changed life circumstances.
For example, the surviving spouse may want to give a child who is having money problems part of his inheritance early or one child may get a high-paying job and no longer want the family home that was bequeathed to her. In some situations, the surviving spouse may need to sell the family home that was bequeathed to her and then to the children so she can move into a nursing facility. None of these options are possible with a joint last will and testament.
Should you and your spouse choose to draft a joint last will and testament, carefully weigh the advantages and disadvantage to make sure this is the right option for both of you. Keep in mind that not every state recognizes a joint last will and testament, so always check your state laws on joint wills.
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