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Will Options for Couples

Updated: December 13, 2022

While an individual will gives you complete control of your wishes after you die, committed couples creating two wills can sometimes be an expensive process. There are other forms of wills that you and your partner can consider if each of you want the same thing after your death, i.e. passing your combined estate to your partner and eventually to your children and/or the same beneficiaries when your partner dies or you both die at the same time.

  • These options can be considered for couples that are married, in a civil union, domestic partnership, or other similar formal relationships recognized in their state.
  • The steps to create these wills are the same as those found in What should be included in a will.

If you opt for one of these wills and have children, you can use it to name a guardian for minor children.

  • If your designated guardian is not able to manage the child’s finances, you may also choose to name an executor to manage them.
  • Except for a joint will, you are not required to agree and could pick different guardians in your wills.
  • You could name a guardian with a codicil/addendum that can be altered without updating the entire will.

Although partners usually name the other as executor of their will, you can name another person if you feel your partner would not be the best choice as your executor. Even if you name your partner, you should have an alternate executor in case they become unable to or you both die at the same time.

The Mirror Will

One option for you and your partner is to create “mirror” or reciprocal wills. This could save time and money, since once you have created your will it is a simple process to create a mirror will for your partner by just substituting their name for yours, vice versa if you are naming each other as beneficiaries and their individual assets in place offor yours. Each of you can name your executor and back-up executor.

Like everything else, there are many things to consider before making a decision, the most important of which is that these are individual wills and either of you are free to change or revoke them at any time, without the other’s consent or knowledge. For example, your spouse can add or change beneficiaries either before your death without your knowledge or consent and/or after your death.

Using a Mirror Will

Mirror wills should only be an option under very specific circumstances and are best considered when all of these are true.

  1. It is not possible to create a joint will.
  2. You want to name each other as beneficiaries.
  3. Either you have only shared biological/adopted children or no children to name as beneficiaries.
  4. You and your partner are in complete agreement about the fate of the estate upon passing.

Although a will is not the best place to leave funeral and burial wishes since the will may not be read until after these happen, each partner can include their own preferences.

When to Avoid a Mirror Will

Mirror wills are not the best options for anything but the simplest social and financial relationships, so it is not surprising that they are not appropriate for most couples. They would not be a good choice for a blended family or couples with a lot of individual assets. 

If you have a blended family, many complications could affect the will-making process.

  • Your partner may bring additional beneficiaries to the relationship, including step-children and in-laws that could make your partner’s beneficiary priorities different from yours.
  • This may have the result of preventing your chosen beneficiaries from inheriting if your surviving partner updates their will to leave the estate to their biological/adopted children or other family.

If you marry later in life, you may want to protect assets that you have already chosen the beneficiary for in a previous will, whether they are family or another type of relationship.

A mirror will cannot avoid a situation where your partner could opt to change their will to reflect their new preferences either before or after your death, even changes in your children’s inheritance.

For complex relationships, you should likely create two individual wills that address all the unique circumstances of your lives.

Mutual or Married Will

If you would like to create individual wills but are concerned about the ultimate distribution or your estate, consider a mutual will. They are similar to mirror wills in that you each have your own will, but any terms that you mutually agree on can’t be revoked or changed in your will after your death or without mutual agreement while you are alive. They may be appropriate if you are remarried or if you want to protect your children if your surviving spouse remarries.

Mutual wills contain additional terms that make it mutually binding, i.e. you must each carry out the others wishes stated in their will.

  • Once a clause is added that limits how your surviving spouse can distribute your personal items or jointly owned property, the will is irrevocable (cannot be changed). Any wishes agreed upon in each of your wills must be carried out once your surviving spouse dies.
  • This ensures that any property left to your children in the mutual wills eventually passes to your children, rather than to your surviving spouse’s new spouse or stepchildren.
  • This is true even if your surviving spouse attempts to convert assets to a form that will go directly to a beneficiary without a will, such as a payable on death account.
  • As with all wills, there are differences among the states.

There are a number of other differences between mutual and mirror wills.

  • The will should contain more detailed instructions on how certain assets are distributed, since the will may not be settled until long after you die and you may have to anticipate long-term events.
  • You can add a clause that neither party can alter their will while both of you are alive without mutual consent and after adequate notice to allow time to prepare and alter your will accordingly.

The Joint Will

Unlike other wills, a joint will is a single legal document for married couples that you both sign. Joint wills are rarely used these days and may be prohibited in some states.

The Basic Details about Joint Wills

The will contains an agreed upon distribution of your jointly owned property that will not go to your surviving spouse (or joint signer) through other means.

  • In community property states, any assets you acquire after your marriage are equally owned by you and your spouse in which everything goes to your spouse when you die without a will.
  • Any assets that are transferred or pay-upon-death to your spouse will go directly to them.
  • Any assets transferred by a trust, whether a living trust or one created by a separate will, are not included in the joint will.

They may include instructions from each of you about how your separate property is to be distributed.

The will can only be updated or revoked by mutual agreement while you are both alive.

Once either of you die the will cannot be changed or revoked since your surviving spouse would be unable to without you around to give your approval.

Once your surviving spouse dies, the estate goes automatically to your children even if they remarried or created a new will. Neither party will be able to disinherit your mutual children/beneficiaries.

While the joint will appears to be an effective way to assure your children get their inheritance, the unchangeable and irrevocable nature of the will can have unintended consequences for both your surviving spouse and children that could continue however long it is between your death and theirs.

  • The surviving spouse must adhere to any terms in the will until their own death. For example, they would be unable to:
    • Sell the family home to be able to downsize or move into an assisted living facility;
    • Sell assets covered by the will if extra money was needed for them or your children; and/or
    • Give away assets covered in the will to charity or stop payments to charities they no longer support.
  • Your beneficiaries can’t use the assets in other ways even if circumstances arise where the assets in the will would have been helpful. For example, your surviving spouse would not be able to:
    • Give an adult child any inheritance early to buy a house or start a business;
    • Move assets into a special needs trust to provide for a disabled child’s needs or set up a spendthrift trust for a beneficiary with poor financial management skills;
    • Help grandchildren with college expenses or other relatives with medical expenses;
    • Add an encouragement clause for any child, such as finishing college;
    • Put provisions on the money that will be inherited by a child who is not financially responsible; and/or
    • Redirect money from a beneficiary who no longer needs it to one who needs it desperately. 
  • If the surviving spouse remarries, they would be unable to transfer or leave any of the jointly owned property from your will to their new spouse, stepchildren, or in-laws.

The joint will does not usually go through the probate process until the surviving spouse dies.

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