Should Married Couples Have Joint or Separate Wills?

When two people marry, they might wonder if they should share a last will and testament. With a joint will, they have one document, signed by both people. When one partner dies, everything can pass to the survivor.

This method might be the simplest way for a couple to create a will, but it is not necessarily the best method of estate planning for couples.

This article explains joint wills and what you should consider before creating a joint will.

What Is a Joint Will?

A joint will is a last will and testament for two people, such as a married couple. A joint will is a single document and can direct all property to a surviving spouse. After the surviving spouse dies, their children (called beneficiaries) receive the couple's estate.

With a joint will, also called a mutual will:

• When one spouse dies, the couple's single will ensures that the surviving spouse keeps everything, including the home.
• The children keep everything in the future, after both parents have died.

What Are the Pitfalls of a Joint Will?

A joint will cannot be updated after one signer's death. The surviving partner, while alive, may not:

• Allow the named beneficiaries to receive will property early.
• Sell their home (which the surviving spouse must keep for the named beneficiaries).
• Add new beneficiaries after remarriage.
• Name a different executor (person who works with the probate court to distribute assets according to a will whose creator has died).
• Create a new will to name a new beneficiary.
• Change the will for any number of pressing reasons.

Of course, the couple can always change their will by revoking it and creating a new one or by creating separate wills. But if they don't make changes to a joint will before one of them dies, it's too late.

Some states do not allow joint wills. Mutual wills keep property from being put to its best use by leaving it under the partial control of someone who's no longer alive. Even in states that allow joint wills, they can meet challenges in probate court.

A Separate Will or “Mirror Will" Changes the Outcome

Couples who want to avoid the drawbacks of a joint will can create two different wills. The couple's independent wills can work in harmony with a family trust. When one spouse dies and the surviving spouse potentially remarries, separate wills help. Creating separate wills is a good way to equip the surviving spouse with decision-making power.

In a document called a mirror will, each spouse has a will that looks like the other. But each will says that when one spouse dies, the survivor may amend their will to suit changes in the survivor's life. Typical life changes include remarrying, becoming part of a blended family, and potentially welcoming new stepchildren and new grandchildren.

If they create different wills instead of mirror wills, spouses who are parents should consider how their documents will work if both spouses die in one event. Parents of underage children should agree on provisions involving those children, including naming an agreed-upon guardian.

What Property Is Just Yours?

State laws control property ownership among married people. In most U.S. states, common-law property ownership prevails. You are the owner of any property that you buy with your own income, that you inherit, that you accept as a gift, or that you hold under a title that names you as the owner.

By making your own will, you can bequeath your property to anyone you name. But see the following section to learn how language on the title can override your will. There are other legal limits as well. One spouse generally may not use a will to disinherit the other spouse.

State laws contain the legal limitations and rules pertaining to will-making. A valid will must meet state-specific requirements.

What Property Do You Own Together With Your Spouse?

The way spouses vest certain property on the titles as co-owners serves to direct the distribution of that property after one spouse dies. Generally, the language on your title trumps any contrary language in your will.

Depending on your state's marital property law, co-ownership may take various forms:

• The co-owners may vest real estate in a joint tenancy with the right of survivorship, thereby owning equal shares. The death of one spouse legally ends that person's interest. The surviving co-owner then automatically owns the whole asset — no matter what the spouses' wills say. This form of co-ownership is highly popular among married people.
• Spouses could, alternatively, hold their real estate as tenants in common. At any time, tenants in common may transfer their share of the asset, with or without the other person's permission. They do not necessarily hold equal shares. They may each use individual wills to bequeath their shares to each other or to other parties.
• In a minority of states, spouses can vest their assets in a tenancy by the entirety. No matter what the will says, property vested this way passes at death to the surviving spouse.
• In a few states, known as community property states, married people who buy property automatically co-own it with the spouse as marital property. As the testator (will creator) in these states, once you die, your part of your estate passes to your surviving spouse unless a valid will overrides this. You may hold assets you had before the marriage, or assets you inherited alone, as separate property — as long as you keep your holdings and accounts separate. Married people in these states may also sign a legal agreement designating assets as separate property.
• Several community property states allow spouses to vest assets as community property with right of survivorship. Titles to real estate and other assets vested this way avoid probate, and the property and assets automatically pass to the deceased spouse's survivor.

Note: The above applies to heterosexual or same-sex spouses. States follow the 2015 Obergefell v. Hodges decision, by which the U.S. Supreme Court acknowledged same-sex marriage as, simply, marriage.

The Importance of Professional Guidance

Married couples who agree on how they want their estates distributed after they die might assume a joint will is a good idea. However, for a number of reasons, creating separate is a better idea.

If you are thinking of making a will while sharing your life with loved ones, consult an estate planning attorney in your state for legal advice. A respected local law office can explain the effects of life insurance policies, mortgages, other parties' claims on your separate or marital property, and many case-specific facets of your own estate planning.

Amending a will through a codicil may leave your decisions more vulnerable to challenges. An attorney can help you draft a new will. Your financial adviser can also help you understand the financial aspects of co-ownership, earnings, capital gains, and taxes.

You can also get started making a will for a simple estate by using state-specific last will and testament forms.