Creating an estate plan is an essential step every married couple should take, and that includes creating a will. However, married couples often ask if they should create a separate or joint will. A joint will is one will for two people, often for a married couple, which acts as a living will and testament for both. Our Madison estate planning attorneys explain whether couples should consider having a joint or separate will.
Should We Have a Joint Will?
When a couple signs a joint will, the will often states that after the first spouse dies, that spouse’s entire estate goes to the surviving spouse. Once the second spouse dies, the estate usually goes to the couple’s children. Couples who want a joint will often presume that this type of will is easier and cheaper than having two separate wills. However, couples should consider the pros and cons of having a joint will before making a decision.
Potential Problems with Joint Wills
One of the cons of joint wills is that they often contain a provision stating that neither spouse can change or revoke the will alone—which means that they can’t change the will after the first spouse dies. In some cases, the surviving spouse, who may live years after the first spouse’s death, cannot make adjustments to their will after certain life changes.
For example, a widowed man wouldn’t be able to change their will to include their newborn grandchild because his spouse passed away before the grandchild was born. These are significant problems that couples could face with a joint will.
The surviving spouse might also not be able to:
- Give an adult child some of his inheritance early—perhaps to buy a house or start a business
- Sell or give away assets included in the will
- Sell the family home and buy something smaller (or move into a senior living facility)
- Help their child or grandchildren with college expenses
- Put restrictions on the money that will be inherited
Important note* Wisconsin does not allow joint wills. Illinois does allow joint wills.
If a joint will is presented at a Wisconsin probate court, the court will try to separate the document into two separate wills. If the document is written in a way that can only become effective when the second spouse dies, the court will refuse to admit it to probate.
Creating Separate Wills
Since joint wills have some possible restrictions, married couples often prefer creating separate wills. In separate wills, each spouse can have identical provisions if they want, but after the first spouse dies, the surviving spouse can adjust their will to reflect the changes in their lives. Whether that be a new spouse, new grandchildren, or new stepchildren.
If a spouse's wishes are not identical, spouses can draft their separate will that goes according to their unique specifications. Before drafting a will, it is important to discuss your wishes with an experienced attorney. An attorney can explain your options and what you need to develop a comprehensive plan.
Experienced Estate Planning Attorneys
Creating a comprehensive estate plan is not a simple process. Thankfully, our team at Estate Law Partners, LLC is here to draft the legal documents you need to protect your estate and your loved ones. Whether you want to obtain a joint or separate will, our estate planning attorneys can help you every step of the way.
Contact our Madison estate planning attorneys today at (608) 292-5185 to schedule a consultation!