Do a Husband and Wife Need Separate Wills?

Many couples do all their financial and estate planning together. It seems expedient and keeps both of them completely informed. But is this always a good idea? Are there times when a husband and wife need separate Wills?

Separate Wills, The Key To His and Hers Estate Planning

A joint Will is a single legal document that typically says the surviving spouse receives the entire estate. One big disadvantage to using a joint Will is that both spouses must agree to change or revoke the Will. For example, Jack and Marie sign a joint Will. Jack dies while their two children are very young. Marie remarries and has one more child. She’s unable to change her Will to include her youngest child or provide for her new spouse. For this and other reasons, joint Wills are not common because better options are available.

Reasons a Husband and Wife Need Separate Wills

Even if a couple consults with an attorney at the same time, it is not necessary or advisable for them to prepare a joint Will (although the provisions within each separate will may be similar). In fact, there are several reasons that a husband and wife need separate Wills:

• When the couple’s relationship is fairly new, their goals and final wishes may not align.
• If the couple signed a pre-nuptial agreement, they may want to consider using separate attorneys to prepare separate Wills. The provisions of the pre-nup need to be considered because they usually will trump a Will.
• With blended families, especially where only one spouse has children, a couple may need to coordinate Wills, trusts, and beneficiary designations to ensure support for both the children and the surviving spouse.
• When one spouse is wealthier than the other, the wealthier spouse may have different estate planning goals.
• If the couple’s communication is one-sided, one spouse’s wishes may be overlooked if separate Wills are not prepared.
• When there’s a large age difference between the spouses, they may need different estate planning altogether. For example, the older spouse may be more interested in creating a legacy or planning for incapacity.

Let’s consider how Jack and Marie could have handled their estate planning. Instead of a joint Will, they prepared separate Wills. They left most of their estates to each other. However, Marie left a gift to her alma mater and Jack bequeathed his boat to his fishing buddy. They provided for their children in both their Wills and in a revocable living trust.

Consult with an Experienced Estate Planning Attorney

The answer to the question, “Do a husband and wife need separate Wills?” is yes, they do. Just because joint Wills exist does not mean they are an appropriate choice. Most couples fare better with separate Wills.

Law Offices of John Mangan, P.A.     Palm City – Stuart, FL

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