If you are newly married, you and your new spouse will probably want to make changes to your existing estate plans to reflect your new marital status. One of the first things you will likely consider is changing your existing Wills or creating Wills if you do not yet have them. You may have heard that married couples often create joint or reciprocal Wills. It is important to understand the difference between these two options as well as to understand how much either option can accomplish. With that in mind, the Los Angeles attorneys at Schomer Law Group, APC discuss the benefits and limitations of reciprocal and joint Wills for married couples.
What Is the Difference between Joint and Reciprocal Wills?
Typically, a Last Will and Testament is the first document created when working on an estate plan. A Will allows you (the “Testator”) to decide how your estate assets will be distributed after you pass away. Once married, you may want to make changes to your existing Will to make your spouse the beneficiary of your estate. In fact, you and your spouse may decide to create joint or reciprocal Wills. Although these two types of Wills are similar, they are not the same.
A joint Will is one single document that reflects the wishes of both spouses and serves to distribute the estate of both spouses. A joint Will, therefore, is signed by both spouses. A distinguishing feature of a joint Will is that upon the death of one spouse, the joint Will remains in effect and cannot be changed by the surviving spouse.
Reciprocal Wills involve the creation of two documents with terms for the distribution of the involved estates that mirror each other. You and your spouse each sign your respective Will. Because each of you executes a distinct and separate Will, the surviving spouse can modify or revoke his/her Will after the death of the first spouse to pass away.
Benefits and Limitations of Joint or Reciprocal Wills
While it does make sense to execute joint or reciprocal Wills after you get married, you and your spouse may wish to consider additional estate planning tools and components to help achieve all your estate planning goals. Although either a joint or reciprocal Will can distribute your entire estate, there are limitations to what a Will can achieve on its own, such as:
- Lack of asset protection. As your estate assets grow in number and value, you should consider taking steps to protect those assets from creditors, business failures, and other threats. A Will, unfortunately, does not offer any asset protection.
- Lack of guarantees. Most couples create joint or reciprocal Wills with the understanding that the last spouse to pass away will pass the combined assets down to the couple’s children. If you rely on reciprocal Wills, however, you have no legal guarantee that your children will end up with anything because your spouse could revoke his/her Will after you are gone.
- No incapacity protection. The terms of a Will only apply in the event of the Testator’s death. If you become incapacitated, however, a Will does not help. To ensure that your assets are protected, and your wishes honored, you need to include incapacity planning tools in your estate plan.
- No probate avoidance. Assets distributed in your Will must go through probate before they can be passed down to the beneficiaries. This can cause a delay of months, even years, before your loved ones receive their inheritance. Assets distributed via a trust, on the other hand, bypass probate altogether.
The best way to ensure that you execute the right type of Will for your situation, and that your estate plan accomplishes all your goals, is to work with an experienced estate planning attorney.
Are You Ready to Work on Your Estate Plan?
For more information, please join us for an upcoming FREE seminar. If you have additional questions about joint or reciprocal Wills, contact the experienced Los Angeles estate planning attorneys at Schomer Law Group APCby calling (310) 337-7696 to schedule an appointment.