What is a joint will & should you use one?

A joint will is one that two people, commonly a married couple, have agreed to abide by. While good in theory, joint wills can pose challenges to a surviving spouse.

Derek Silva

Derek Silva

Published June 10, 2019

KEY TAKEAWAYS

  • A joint will is a single will that two spouses have signed

  • Not all states recognize joint wills

  • Joint wills are inflexible and surviving spouses may struggle to change them according to changing life circumstances

A will, sometimes called a will and testament, is a document that an individual uses to dictate who will receive some or all of their assets after death.

A joint will is one that two people, typically a married couple, sign together. Instead of each spouse having a separate will, they have one document that they’ve both agreed to. Most joint wills are written such that when one spouse dies, their portion of the estate passes to the other. Then the entire estate goes to their children when the second spouse passes away.

Joint wills may sound like a simplified way to handle your assets after death, but they’re inflexible documents that can put people in a bind when circumstances change or if one spouse long outlives the other. Some states also don’t recognize joint wills, which decreases their usefulness.

In this article:

How joint wills work

Just like a standard will, joint wills dictate what happens with your assets after your death. The difference is that two people have signed the will and agreed to abide by its terms.

The most common signees of a joint will are a married couple. When one spouse dies, the other gets the entire estate. Upon the death of the second spouse, the estate passes to their children according to the terms of the will.

As with other wills, the estate will need to go through probate after both spouses have died and before the estate passes on to the beneficiaries. Probate is a process where a state court oversees the transfer of assets. When there is a will, the court will use it as a starting point to determine what assets go to which beneficiaries.

Read more about how estate planning works, including our estate planning checklist.

Mutual wills

Mutual wills are often lumped together with joint wills because they are effectively the same. However, they do function a bit differently. Instead of just one will document, each spouse has their own. These wills are normally the same but don’t have to be identical. Then there is a third document where both spouses affirm that they will adhere to their will in the event that the other dies first. Once one spouse dies, the wills cannot be changed.

Read more about the different types of estate planning documents.

What does each spouse own?

Some important knowledge with joint wills is what each spouse owns and what assets you can use a will to pass on. Since laws can vary by state, it’s a good idea to talk with an attorney if you have specific questions.

Common law states

Most states use a common law system for determining property ownership. In these states, you own something if your name is on the deed, title, or registration. If none of these documents exists, the owner is the one who paid for the property or received it as a gift. You have the right to pass on your property to whomever you choose. (Though you can’t completely prevent a spouse from inheriting some of your property.)

So if you share a car with your spouse but your name is on the title, then the car is your property upon your death and you can decide who gets it when you die.

In common law states, each spouse owns a half-interest in property if both of their names are on the title. In the majority of cases, your surviving spouse owns the property when you die.

Joint ownership

On a more technical side, there are three types of joint ownership:

  • joint tenancy with right of survivorship
  • tenancy by the entirety
  • tenancy in common

With joint tenancy and tenancy by the entirety, your spouse becomes the full owner when you die. When you own something by tenancy in common, you have the right to leave your ownership interest to someone after you die.

Community property states

In community property states, any property or money you earn after your marriage is equally owned by you and your spouse. Basically everything goes to your spouse when you die unless you state otherwise in a valid will.

The nine community property states are:

  • Arizona
  • California
  • Idaho
  • Louisiana
  • Nevada
  • New Mexico
  • Texas
  • Washington
  • Wisconsin.

There are also a few states where a couple can opt in for all or some of their property:

  • Alaska
  • South Dakota
  • Tennessee.

How to create a joint will

Joint wills are very similar to standard wills and you can create them in the same ways. An estate planning attorney can help you draft a document that includes all the necessary information. Creating your own will, with the help of an online template, is also an option. Using a template from the internet save you money.

You can draft a strong will whether you go through an attorney or use an online template. Neither method is necessarily better or worse but an attorney can provide legal advice if you have a complicated estate or want to distribute your assets to many beneficiaries.

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Why you may not want a joint will

Joint wills are not common outside of married couples, and they aren’t very common for married couples either. While it seems convenient to lock in a plan for both spouses at once, it can cause problems. This is especially true when one spouse outlives the other because both spouses must consent in order to make changes to the will.

As long as the two spouses are alive, a joint will is revocable. That means the spouses can agree to revoke it and make changes. That means when one person dies, the other no longer has any way to make changes to the will. At this point it’s considered irrevocable.

The challenge here is that it’s difficult to predict how life may change when one spouse outlives the other. Without the flexibility to make changes, a surviving spouse can find themselves in a difficult situation.

It’s also possible something happens to beneficiaries, making them unsuitable. One example is where a will designates an organization as beneficiary, but then it stops operating.

The only recourse for a surviving spouse who wants to make changes may be to contest the will through court action. (Read more about contesting a will.)

Not all states recognize joint wills

Even if a couple goes through the work of creating a joint will, their state may not recognize it. As mentioned, an estate still goes through a probate court after both spouses pass away. The court may attempt to split the joint will into two separate wills. If they’re unable to do so, they may simply make inheritance decisions without the will.

In some cases, a court will also rule that once a spouse passes away, the other spouse can handle the estate however they wish. And while this could give a spouse flexibility in case their life situation changes, it also allows them to go against the original plans that both spouses agreed to.

Alternatives to a joint will

Joint wills are good in theory but can pose challenges in practice. To avoid difficulties, consider one of these alternatives.

Reciprocal wills

Also known as a mirror will, a reciprocal will, is one where spouses each create their own will and designate the other spouse as their primary beneficiary. Then their children or other intended beneficiaries are named as contingent beneficiaries. So when the second spouse dies, the estate passes to the other beneficiaries.

Each person has their own revocable will, which gives them the flexibility to make changes should their life circumstances change. However, reciprocal wills also require some trust in your spouse. The ability for your spouse to amend the will after your death means they could make changes that go against your wishes or a prior agreement.

Trusts

A trust is one of the most common ways to pass your estate to specific beneficiaries after your death. Creating a trust functions like a third party that you give ownership of your assets to and then the assets are distributed to your beneficiaries when certain pre-set conditions are met (usually your death). For the most part, trusts also allow you to avoid probate.

If you don’t want to create a trust during your life, you can create a testamentary trust, using a will that includes instructions for the creation of a trust when you die.

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