In traditional nuclear families especially, both spouses often have a desire to draft joint wills that give everything to their surviving spouse and then an equal distribution to their children. This gives rise to the intuitive question: Is it wise to draft a single will instrument that is on behalf of two separate persons, such as a husband and wife?
While a joint will is legal in most states, it is almost never wise to do so.
There are three primary reasons why spouses should not execute a joint will:
The first is that it could be regarded as a “contractual will”, complicating efforts to make changes after one of the spouses dies. Ordinarily, the great discretionary power in having a will is that you may change it at any time so long as you are alive, of sound mind, and elect to do so. In some states that adopt the “contractual theory of a joint will”, you will need to obtain the other spouse’s consent before making any changes to the will and may be precluded from making any subsequent changes to your will in the event that you are the surviving spouse. Being able to dispose of your own assets is the most American of rights (literally, the right to disinherit spouses and the oldest male child was a dispute at the time of the American Revolution) and you should not discard your rights lightly.
Secondly, every state permits the revocation of a will by a physical act. Most states do not have case law on the effect of a joint will that one spouse physically destroys. If the attorney has a record of that will on file, is it still a valid will as to the spouse that did not physically destroy the original? That is not a question that can be answered with anything resembling absolute certainty.
And thirdly, when a spouse dies, an original will has to be provided to the probate court as part of the proceedings for settling the estate of the first spouse. If the second spouse dies thereafter, there is no will to provide to the second probate court if the first probate court maintains the original (this can be resolved upon a motion to obtain a certified copy of the original in the first probate proceeding, but this will add cost and at least a month to the length of a probate proceeding).
If it is important that assets be distributed according to the wishes of two people at a particular time, the best course of action is to establish a trust. Otherwise, each spouse should create their own will, both for ease of administration, and for maintaining the ability to act autonomously with one’s assets after the death of the first spouse. An effort to save money by executing a joint will falls into the category of behaviors that is hundreds of dollars wise but thousands of dollars foolish.
Note: This article should be read for entertainment purposes only and is not intended as legal advice. All warranties disclaimed to the fullest extent under the law.