A Positive Kind of Marriage Separation: Why You and Your Spouse Need Separate Wills

When married couples create their estate plan, they will have the option to create a joint will or two separate wills. It may be tempting to create a joint will because it cuts down on the added expense of creating two wills, especially when both spouses own the same property anyway. However, attorneys will rarely advise clients to create a joint will, and there is good reason.

What is a Joint Will?

A joint will is exactly what you’d expect—it is a will that covers two or more people, usually a married couple. When one of the spouses dies, the will is probated and administered normally. Then, the will becomes the surviving spouse’s will.

Usually, a joint will is set up so that when the first spouse dies, all of the property and assets will go to the surviving spouse. Then, when the surviving spouse passes, the remaining property or assets will go to the couple’s children.

When one spouse dies, the surviving spouse may not be able to change the joint will later. It “locks in” the surviving spouse to the agreement as it was laid out when the couple developed the will. This can be a good arrangement if you are concerned that your spouse will leave all of his or her property to a new stepchild instead of your children, but it can have serious problems as well.

Problems with Joint Wills

A joint will works well if the spouses end up passing away around the same time. However, this is generally not the case. The surviving spouse could have a change of circumstances after he or she loses their spouse. For example, if a child suddenly leaves the family or passes away, the surviving spouse may want to alter the will. Circumstances can change so much between the time that both spouses pass that a joint will may not make sense.

Joint wills also prevent a lot of freedom to move or change property or inheritance, including:

  • Selling assets
  • Giving children some of their inheritance early
  • Helping grandchildren (or children) with college expenses
  • Moving into a smaller home or downsizing (or making the change to assisted living)
  • Putting financial restrictions on certain inheritances

There are alternatives to joint wills that can still accomplish certain goals without creating problems down the road. For example, you may be able to create a trust for your children, which would ensure that children get their inheritance without tying up other assets. Separate wills that mirror one another could also be another viable option.

What you use for your will should vary depending on your unique family and financial circumstances. Our team can help you determine which option will work best for you. Call 503-543-4800 to schedule an appointment today.

Written by Clarke Griffin

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