When I sit down with a new client to discuss a potential Will, I like to do a comprehensive review of all of the client’s estate planning needs. This might include looking at retirement accounts and insurance policies, as well as Power of Attorney and Living Wills. The idea is not to “up-sell” the client on additional products, but to make sure they are aware of potential risks, or “holes,” in their plan. Ultimately the decision belongs with the client and most are surprised or caught off guard when I suggest that married couples should have two individual Wills rather than a single joint Will.
Are individual Wills preferred to joint Wills for married couples? Well, as with most questions with the law, the answer is “it depends.” Individual Wills give each individual the freedom to dispose of their assets as they wish, whereas a joint Will becomes a binding contract upon the death of the first spouse. My experience is most spouses agree on how they want their assets distributed when they first begin thinking about drafting Wills. Generally speaking, after the first spouse dies, the survivor receives everything, then it is not until the second spouse dies that distribution issues may arise. If the couple has individual Wills, then the survivor is free to abide by the decisions they made with their deceased spouse or make changes to the Will. The survivor of a joint Will is bound to the distribution of assets they agreed to when the joint Will was first formed, however, regardless of how their circumstances may have changed.
The idea of changing the distribution of assets in the future is important to consider because you never know what life has in store for you. Here’s an example – a happily married couple executes a Will; one of the spouses dies, leaving their entire estate to the survivor; the survivor at some point in the future re-marries. In this scenario, the survivor with an individual Will may want to make changes to their Will because their family situation has changed. On top of a new spouse, there may be new step-children, new nieces and nephews who may end up being close family members, or depending on the age of the new couple, there may even be new marital children.
If the survivor has their own individual Will, they are free to revoke the prior Will and make whatever changes to the distribution of assets they desire. But if that survivor has a joint Will with their deceased spouse, they are bound to that joint Will because the Will cannot be unilaterally revoked; all parties would have to agree to make changes. And of course, that would be impossible if one of the parties is deceased. So the surviving spouse that has remarried is now bound to honor the asset distribution they agreed to in their previous marriage, and they are unable to provide for their new family.
This is an extreme, but realistic, example of how restrictive a joint Will can become for the survivor. But the possibility of re-marriage is not the only reason to consider individual Wills. Of the clients I work with, probably half are writing their first Will, while the other half simply wants to make changes to an existing Will. And the reasons for changes vary widely. Sometimes it is because of the death of a spouse and the survivor had not properly accounted for contingencies. Sometimes a testator (person writing the Will) wants to update the Will because an Executor or named beneficiary has predeceased the testator, and again, contingencies were not properly accounted for, or the testator simply wants to change the contingencies. Unfortunately, many of the Wills I end up re-writing end up cutting out a family member who may have previously stood to inherit from the previous Will. As you may imagine, there are a variety of reasons why someone may want to cut someone out of their Will, but this would not be possible if the surviving spouse was bound to a joint Will created with their predeceased spouse.
If you are considering writing or updating a Will, please call my office and schedule a consultation. I will help you look at different scenarios and determine what the best approach for your individual situation is.