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On Behalf of | Aug 20, 2015 | Wang IP Law Blog

Estate planning is essential to ensure that your assets will be distributed the way you would like after your death. A common way couples divide their estate is through a joint last will. Spouses typically use a joint will, but it can be created between any two people.

A joint will is a single document that dictates the distribution of assets of two people. In a joint will, two individuals leave all their assets to each other and agree on what should happen to their property after the passing of the two individuals. It will ensure that the wishes of both parties and how they want their assets are distributed are met. A joint will is commonly used for couples to pass all their assets to the surviving spouse upon death. Upon the death of the surviving spouse, the assets will be inherited by the couple’s children.

Advantages and Disadvantages of a Joint Will

Couples may choose to create a joint will instead of creating two separate wills to save time and money. With a joint will, the parties involved will know exactly what will happen to their assets upon death. The surviving individual will then oversee the assets until they are also unable to. The will dictates that the surviving party cannot change their mind about the distribution of the property upon death of the first individual. A joint will can normally prohibit the surviving spouse to remarry as well. However, a joint will cannot do anything legally beyond what two separate wills can do.

Though a joint will gives the parties a peace of mind upon death, sometimes situations change. Because the will dictates that the surviving individual is not allowed to change what is written on the will without the other party’s approval, the surviving party cannot adapt to current times. Even if the party believes that a beneficiary does not deserve to receive assets anymore, the property that came through the joint will has to be passed on exactly as the will describes. For example, if a child was given an inheritance in the will, but abandons the family after the death of a spouse, the surviving spouse may not have the right to change the will to limit the child’s inheritance.

Another detrimental scenario that may happen is if the family home was put in the joint will, the surviving partner is not legally able to sell the home, even if they needed money or is required to move into an assisted living facility. If a couple creates a joint will while young, and one spouse unexpectedly passes away at an early age, the remaining spouse will be bound to the joint will for a long period due to their inability to amend the will. The surviving spouse may not be able to remarry depending on the terms of the joint will.

Alternatives to a Joint Will

A reciprocal will, also referred to as a mirror will, is a viable alternative for a joint will. As the name suggests, couples create individual wills and name each other as the main beneficiary. Since each will is separate, it will not bind the surviving spouse which will allow them to amend their will and prepare a new will if needed.

In some states, such as Oklahoma, couples can create a mutual will. A mutual will is two separate documents with a legal agreement that the wills cannot be changed or altered after one spouse passes away. Attorneys do not encourage this type of will because spouses are making a moral obligation to each other rather than a legal one. It is difficult to legally enforce the agreement for the surviving spouse not to make any changes to their will.

A joint will may save time and money for spouses, but there are also many risks involved. A joint will is one will that covers the assets of two people. When one passes away, the assets in the joint will are probated and given to then surviving spouse. It can be legally binding if one spouse unexpectedly dies, and it cannot be easily changed to reflect the changing circumstances in a person’s life. A joint will saves couples time and money, but there are many complications that may occur.