Designing one document that expresses the estate planning wishes of both spouses--sounds like a dream, right? Well...not so fast.
Joint Wills used to be
more popular in the distant past, and Minnesota law still allows them. You
might even find a few practitioners who still offer joint Wills. A joint Will
has one attraction: it ensures that, no matter which spouse dies first, the
estate will ultimately pass to their beneficiaries in the agreed-to manner upon
the death of the second spouse.
If two spouses don't trust each other to follow through with the estate plan after one of them dies, then perhaps a joint Will is the answer.
But just because you can get a joint Will doesn't necessarily make it a good idea. In fact, a joint Will has some serious drawbacks. Once in a while I get a request for one, and because the disadvantages so greatly outweigh the advantages I decline representation in such cases.
A joint Will is a contract between both spouses to agree on the disposal of their estate after both have died. They both have agreed in writing to the terms of the Will, and changing those terms would require consent by both parties. As long as both spouses are alive (and competent to execute a new Will), they can mutually agree to change their Will at any time.
But after one spouse dies, the surviving spouse (who inherits the entire estate) is held to the terms of the joint Will and cannot alter that. The terms of the joint Will govern how the estate is distributed after the second spouse dies. This can create problems down the road for the surviving spouse.
What if years later the surviving spouse has different views or different family dynamics and wants to change how the assets are distributed? Perhaps wishing to give more to a child who has medical needs, or wants to go to college or start a business. Maybe the surviving spouse wants to reduce or leave out an inheritance to a child who has become estranged or has developed substance abuse or money problems. What if the surviving spouse remarries and has more children? Since the other spouse is no longer alive to give consent, the surviving spouse is locked in to the terms of the joint Will for the remainder of his or her life. The surviving spouse cannot execute a new Will, or a codicil (amendment) to the existing joint Will.
Even if two spouses express identical wishes for their estate planning strategies, it is far better for the attorney to craft separate "mirror" Wills for each spouse. This enables the surviving spouse to change those strategies later.
Some states do not recognize joint Wills. If presented with a joint Will, the probate court in another state may try to separate the document into two separate Wills. But if unable to do that, the court may invalidate the joint Will entirely and apply the laws of intestacy to the estate.
Finally, there is no clear advantage for attorneys to draft joint Wills. Back in the day, they were popular because of the time saved in their preparation--the attorney only needed to type one document. With today's computers, there is no clear advantages to drafting joint Wills. Thus, no cost savings to pass on to the client.
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Having a separate, valid Will for each spouse can help ensure that your property will be given to the people you choose and that there will always be the option to change things later. Receiving the guidance of a qualified estate planning attorney can help you get started.