The case against joint wills for married couples

Even though married couples often have the same goals in mind when making their estate plan, most attorneys advise against joint wills.

What is a 'joint will'?

A joint will is one will for two people, often for a married couple, which acts as a last will and testament for both. It has specific rules, often stated in the will itself, which include that after the first spouse dies, that spouse's entire estate goes to the surviving spouse. When the second spouse dies, the estate usually goes to the couple's children.

Couples who want a joint will often presume that this type of will is easier and cheaper than having two separate wills because they want the same things anyway.

Unfortunately, this doesn't factor in how courts and some states view these wills, or the problems having a joint will creates, because joint wills for married couples often make things difficult for the surviving spouse.

Problems with joint wills

Having a joint will is problematic for many reasons:

• Joint wills aren't legal in some states.
• Many probate judges don't like joint wills and often separate the will for each party, or even invalidate the joint will.
• A joint will is like an irrevocable contract—once the first spouse passes away, the second spouse cannot change the joint will even if circumstances have changed.
• The inability to change a joint will after the first spouse dies could have assets and property tied up for years, so the surviving spouse can't downsize the marital home, or sell it to pay for assisted living or expenses.
• Failure to have separate wills prevents the surviving spouse from changing beneficiaries, so if that spouse remarries, their new spouse and stepchildren cannot inherit assets listed in the joint will.
• Because a joint will for married couples is irrevocable, after the first spouse dies, the surviving spouse can't disinherit anyone and can't put money in a trust for an adult child who spends money recklessly.
• It doesn't allow the surviving spouse to change beneficiaries or executors, add new beneficiaries who were born after you made the will, or allow beneficiaries to get their inheritance sooner.

The case for separate wills

While you and your spouse can change your joint will during your lifetimes, after the first spouse passes, a joint will is irrevocable. Separate wills and trusts offer more flexibility than a joint will.

In separate wills or "mirror wills," each spouse can have identical provisions if they want, but after the first spouse dies, the surviving spouse can amend their will to reflect any changes in their lives, such as having new grandchildren, a new spouse, and new stepchildren.

With separate wills, the spouses can have provisions that aren't identical, although spouses should choose the same guardian for their children in case they both die simultaneously.

In that rare situation, if there's a conflict between the wills, a court will have to choose the guardian, so it's important for spouses to discuss these provisions before making separate wills that don't mirror each other. Make sure you discuss your estate with an attorney or with an online legal service when making your wills.

Updating your will

Making a will isn't difficult but it must meet your state's requirements or a court could invalidate it. Each state has unique laws, so you'll want to ensure that you make your will in accordance with your state's laws.

Once you have a will, it's a good idea to review it every few years because there are situations where you'll want to update it. Some scenarios for updating your will include where you have new children or grandchildren, you want to disinherit someone or change the guardian, one of the beneficiaries is no longer alive, or you've gotten divorced.

It's important to have an attorney change your will because you can't just cross out things in your original will—you'll need a codicil, which is an amendment to the will—or a new will to replace the old one. In most cases, getting a new will is better than adding a codicil because codicils often cause confusion.

Even if you want to remove a beneficiary, it's best to make a new will so there's no evidence of the prior beneficiary. Without making a new will in this circumstance, the beneficiary who's been removed may want to contest a codicil removing them. The same is true about changing executors—it's best to make a new will so the original executor's name doesn't appear anywhere.

Because of the problems inherent in a joint will, it's understandable why courts don't like them and why attorneys don't recommend them. There are better ways for you and your spouse to bequeath your property, such as by making mirror wills, separate wills with different provisions, trusts, or separate wills with a trust. Any of these alternatives are better than having a joint will, because there's no guarantee a court will uphold your joint will, while the other alternatives will give you peace of mind that a court will follow your wishes.