5 Reasons to Create Separate Wills for You and Your Spouse

June 20, 2019

Two men discussing estate planning at a table.

In most cases, we recommend a trust-based estate plan instead of a will-based plan so that our clients can avoid the cost and hassle of probate. However, there are some situations where our clients do not need a trust to avoid probate because they have a simple estate (no real property, no minor children, not a blended family, etc.) For simple estates, a will-based plan will suffice.

On a will-based plan sometimes the question comes up: Can a married couple create a joint Last Will and Testament? It is technically possible to just make one Will that will cover both husband and wife but we don’t recommend it. Just because you plan on spending the rest of your lives together doesn’t mean you should have a joint Will. Here are our top 5 reasons why it is better to have a separate Will for each spouse.

  1. Joint Wills Are Difficult to Change After the Death of One Spouse

When someone dies, their Will becomes locked in since they can no longer express a change to their wishes. This means that if one spouse passes away, the joint Will would become locked and difficult to update for the surviving spouse. There are ways that this can be done, but it is unnecessarily complex when it could be easily avoided by having separate Wills in place.

  1. Privacy Concerns for Living Spouse

When someone dies, their Will must be lodged (filed) with the local probate court. Probate court is a matter of public record, which means everything in the Will becomes public knowledge. When one spouse is still alive with a joint Will, it means that a lot of information about their assets and other things is revealed to anyone who wants to see it.

  1. Different Needs of Each Spouse

Each spouse will often have separate needs and desires on many things. If the spouses are a blended family and have children from previous relationships, for example, they will likely want to make sure certain things are passed on to their biological children when they die. Additionally, each spouse may have their own financial assets (retirement accounts, for example) that are better handled separately.

  1. Spouses Typically Die at Different Times

A Will takes effect upon the death of the party that the Will is covering. While married couples do sometimes pass away at the same time, that is quite rare. When each couple has their own Will in place, only that specific Will goes into effect upon their death, which can make the process easier for everyone.

  1. You Don’t Have to Wait Until After a Divorce to Change It

While married couples plan on remaining together for the rest of their lives, divorces do happen in a large number of cases. Going through a divorce is a complex event, and that is compounded when a joint Will is involved. If each spouse has their own Will, California law allows them to make new Wills after the divorce has been filed and creating the new Will does not violate the Automatic Temporary Restraining Order (ATRO) against changing beneficiaries, selling assets, etc. during a California divorce. However, if the couple has a joint Will, the couple must wait to change their Wills until after divorce is complete and the Marital Settlement Agreement or judgment is created regarding division of assets before each spouse may create their own new Will. This can be really awkward because the spouse was likely named as the Executor and beneficiary of the joint Will! So, if you die during the divorce proceeding, your almost-ex still handles your affairs and inherits from you! Ouch! On the other hand, if the couple starts out with separate Wills, they can write a new one during the divorce and nominate a different Executor and beneficiaries.

We’re Here for You

If you need any type of assistance with creating or updating Wills for you and your spouse, we are here for you. Even if you already have a joint Will in place, we can help you get it separated right away. Please contact us to discuss your options today.