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Beware of Joint Wills


Estate planning for couples who got together late in life is very different from estate planning for former teen sweethearts who have just celebrated their golden wedding anniversary.  If you and your spouse have been together since you were young, then by the time you reach retirement age, in many cases, your finances will be completely entwined with those of your spouse.  Consider that, from a family law perspective, all of the income you have earned during the marriage is marital property.  Therefore, the nest egg you have built up together belongs to both of you.  Especially if you have been a single-income family for most of your marriage, you might be tempted just to write one will for both spouses.  No matter how much you and your spouse love and trust each other, joint wills are inadvisable from an estate law perspective.  If you and your spouse have previously signed a joint will, a Central Florida estate planning lawyer can help you draft a new will to replace it.

How Writing a Joint Will Can Backfire

With very few exceptions, the testators of a joint will are a married couple.  The joint will bears the signatures of both spouses.  It says that, when one spouse dies, the surviving spouse inherits the whole estate, and when the second spouse dies, the couple’s children inherit everything.  A joint will is legally binding and irrevocable, even after one spouse dies.

The problem is that life is always changing.  This is why one of the central tenets of estate planning is that you should review your estate plan every year and make changes to it, if appropriate.  For so many reasons, you don’t want an irrevocable will hanging over your head.

What to Do Instead

If you and your spouse want to leave your entire estate to each other and then to your children, you have every right to do so, but a joint will is not the best way to do this.  Instead, each spouse should write a separate will.  In your will, you say that your spouse inherits all of your property if she survives you, but if she does not, then your children inherit the estate.  Likewise, your spouse writes her own will, saying that you inherit her estate if you outlive her, and if not, your children inherit it.

Meanwhile, while you are both still living, you review your estate plan every year and make financial decisions together.  You can decide to give money to family members using the annual gift tax exclusion.  You can decide to donate to charity while you are alive or through your estate.  The possibilities are endless.  There are better ways to show your commitment to your spouse and your children than a joint will.

Contact an Attorney Today for Help

An experienced Clearwater estate planning lawyer can help couples who do everything together formulate their estate plan together but write separate wills.  Contact William Rambaum for help.

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