A participant in a recent retirement seminar asked me if a husband and wife could share a will. That question was the impetus for this article.
Two for the price of one is an old marketing strategy. It was used years ago prior to the age of computers and software by some attorneys to save time and provide two people with a very simple estate plan. A husband and wife instead of two individual wills would share a single legal document called a joint will. A joint will is essentially a single end-of-life planning document shared between two people. A joint will can also be shared between others besides marriage partners such as a parent and a child.
Joint wills for married couples are based upon the premise that they share the same assets and beneficiaries and are in harmony about how they want their assets distributed. Neither spouse who signs the joint will can modify the document without the other’s consent. While both are alive the agreement is considered revocable.
Joint wills offered security to each person in a marriage. Security was ensured against reckless decisions from the other partner’s actions. Upon the death of one spouse, the will becomes irrevocable.
The widow or widower by design inherits everything in a joint will and the children will eventually inherit the estate. This arrangement is in accord with the wishes of the wife and husband. The simplicity of a joint will, however, is fragile. This is because of the uncertainty of the future following the death of the first spouse.
Couples who create joint wills may romantically hope they will die together. Nicholas Christakis of Harvard and Felix Elwert of the University of Wisconsin-Madison analyzed nine years’ worth of data collected from over 373,00 elderly couples who lived in the United States. Their research disclosed that 90% of the spouses died within three months of each other. This probability of shared deaths among elderly couples is called the widowhood effect.
Joint wills do not, however, serve those circumstances where a surviving spouse is a widow or widower for a lengthy period. This can be the case for death when the survivor is young. The United States Census Bureau informs us the average length of time for widows to be alone is 14 years.
Changed circumstances make joint wills especially problematic in a variety of situations. The surviving spouse can be powerless to react to certain conditions. A second marriage cannot alter the will to include a new spouse and children. The surviving spouse cannot sell the family home to move into a senior living facility. He or she may not be able to sell assets to assist the children with tuition payments or down payments to become first-time homeowners. Should some assets require active management, and they are not managed correctly they can depreciate thereby diminishing the value of the estate.
The irrevocable nature of the joint upon the death of the first spouse can create another challenge. Compounding the above-mentioned scenarios is the prospect the surviving spouse may have moved to one of the states where joint wills are not recognized. A geographical move by the surviving spouse could result in unintentional delays and expenses upon her or his death.
One solution to a joint will is for couples to make individual similar wills, though not identical ones. This allows each person for instance to tailor specific gifts to others. Another option is also establishing a trust that details the wishes of each spouse to include any other directives or restrictions. The trust can be constructed to allow the surviving spouse to have powers to amend the terms of the trust or even revoke it during her or his lifetime. Consulting with an estate planning expert is imperative.
A lesson that can be learned from joint wills is to be careful in seeking too much simplicity in estate planning or any other planning activity. Elevating saving time and money as a priority in the design stage may not always serve us well in the eventual implementation of any endeavor.
