When a husband and wife are looking at creating a will, they often assume the will is a single document covering the both of them. This document is called a “joint will” (or sometimes a “mutual will” or “joint and mutual will”). However, these types of instruments are not common nowadays.
What is a joint will, and how is it different from a traditional will?
A joint will is what it sounds like: it is a single document operating towards the disposition of property of two people (typically a husband and wife) after their deaths. The added element here that distinguishes it from a traditional will is the fact that it also operates as a contract: the two testators are bound to follow the provisions of the will unless they both agree to change the terms.
The rub here is that once one of the spouses dies, the joint will becomes irrevocable. What happens if one spouse dies 20 years before the other? Or 50 years before the other? Circumstances may change, but the joint will certainly will not.
The reason why joint wills are problematic is the very reason they were conceived to begin with. The instruments came about to prevent a widow from leaving the possessions of his or her dead spouse to someone whom the dead spouse would not approve (i.e. stepchildren).
There are several other legal problems that arise with joint wills.
First, the surviving spouse has a very limiting property interest in the estate left by the dead spouse: a life estate. Without going into much detail (since that much information will only really be helpful to someone in a property law class or on the bar exam), a life estate means that a person only has legal title of some property for the life of a person (typically the life of the current owner). After that person dies, the property goes to whomever the joint will says it does.
The problem here is pretty obvious. Who’s going to buy a house that they can only own as long as the seller is alive? The widow has now not only lost his or her spouse, but he or she is also stuck in the same house until the day she dies. All property is essentially locked in place until both testator’s die.
The second problem is less serious, but still a concern: joint wills are not favored by courts. If there is any question as to whether a document is a joint will, the courts will almost certainly rule against such a determination. However, this does not mean that the document is treated as two separate wills; it means that the court views both people as having died without a will. At this point, the state law determines who gets what. While such an error would unquestionably be the drafting lawyer’s fault, monetary damages from a malpractice suit are little consolation when grandma’s prized antique rocking chair had to be sold so the proceeds could be used to ensure all heirs got their statuary share.
In short, joint wills can work in some situations, but they are generally a bad idea. In planning their estates, most people would like to be able to change their minds. Joint wills limit that ability greatly. So before you get hooked on the idea of drafting a single will together with your spouse, consider the consequences.
Contact Byellin Law if you have any questions about planning your estate.