Senior Couple Planning Their Will with Lawyer

The Pros and Cons of a Joint Will for Married Couples 

The Elder & Disability Law Firm, APC Jan. 24, 2023

Joint wills may seem like a cost-effective way of passing on assets, first to your surviving spouse or partner, and then to any children you may have. Unlike an individual will, however, a joint will requires both the consent and the signatures of both parties. While the two are still alive, the will can be changed or even canceled, but once one partner dies, the joint will becomes a binding contract on the other party, normally the spouse. 

In other words, a joint will is rendered irrevocable once one of the signees passes on, and the terms of the will cannot thereafter be changed. If the surviving partner remarries, has children, or needs to sell assets to take care of personal needs, the will – now a binding contract – prevents any deviations from the original, simple formula: Partner A passes on, Partner B gets everything, and then children inherit everything when B passes away.

A joint will may seem like a good idea when both spouses are alive and well and share the same goals for each other and their children. The problem is that the future is not always so clear-cut as when the jointly-binding document is signed, sealed, and delivered. Lives and circumstances may change, but a joint will can be a roadblock to needed adaptation once one spouse passes on. 

If you and your spouse or partner are looking to begin the estate planning process in or around Redlands, California, contact The Elder & Disability Law Firm, APC. Their attorneys will consult with you, review the goals both of you have for your futures and for the futures of your children, and help you create the legal documents necessary to provide peace of mind for all involved.  

The Elder & Disability Law Firm, APC proudly serves clients not only in Redlands, but also in Rancho Cucamonga, Riverside, Palm Springs, and neighboring communities. Don’t let the firm’s title confuse you – they work with individuals and families of all ages to forge long-term solutions to cover all eventualities. 

What Is a Joint Will? 

A joint will is a legal document agreed to and signed by two individuals who pledge their assets to each other upon death and then to their children upon the death of the surviving spouse. It’s true enough that the same goals can be accomplished by separate wills, but executing just one document may initially sound appealing because it’s simpler and cheaper than doing two separate wills.  

The devil is in the details, of course, and in this case, the problem with a joint will is that once one spouse passes away, the terms of the joint will become binding – irrevocable – so long as the remaining spouse is alive. After the surviving partner dies, the children inherit everything. 

Benefits and Drawbacks of a Joint Will 

The main benefit is the cost-effectiveness and simplicity of doing just one last will and testament for two people, who at the time of its creation are in total agreement about the terms. The problems with a joint will arise once that first partner does indeed pass on. The survivor is then left with terms that may make their life difficult but at the same time foreclose any modifications to the will should the survivor’s life change. 

Consider these potential drawbacks:  

  • If the survivor needs to sell the principal residence, or even other property, to pay for healthcare, home assistance, or nursing home needs, the joint will can block this. 

  • If the surviving spouse has a falling out with one child and wishes to disinherit that person, the joint will prevents this. 

  • If you remarry and have stepchildren or new natural children, you cannot add the spouse, stepchildren, or natural children to the will.  

  • If one child needs financial assistance from the assets you inherited as the survivor, you likely will not be able to tap into your inherited property. 

Alternatives to a Joint Will 

Instead of a joint will, which becomes binding once one of the joint signees passes away, you should consider mirror wills. Mirror wills are like a joint will in that they contain the same terms – surviving spouse gets everything, then the children do upon the survivor’s death. The major difference is that the surviving spouse can change their will after the death of the first spouse. 

Mutual wills are two separate wills, just like mirror wills, but they have an addendum, or codicil, that makes the terms binding once one partner passes away. Thus, there is little difference between mutual wills and joint wills. Neither person’s will can be changed without the consent of the other partner while both are alive, and certainly not after one spouse’s death. 

Get Legal Guidance You Can Depend On 

Whether single or married, you need to plan for the future as early in your life as possible. A comprehensive estate plan will take into account not only protections for yourself but also for your loved ones.  

Your plan should be flexible and reviewed periodically to account for changes in your life. For this, you need to meet with an experienced and knowledgeable estate planning attorney to review your unique circumstances and goals for the future. Don’t leave your future to chance. 

If you’re in or around Redlands, California, or in neighboring areas, contact The Elder & Disability Law Firm, APC. We will provide you with personalized attention and help you create long-term solutions for you and your loved ones.