Should Spouses Consider a Joint Will?

As a married couple, the thinking is that everything should be done together. From owning property to having bank accounts to filing your taxes–things are generally done jointly, as a couple. Except when it comes to making a will, that may not be the best idea.

Technically in Florida, every person needs to either have a will, or have their property disposed of by intestate laws; joint wills don’t exist in Florida. They do, however, in other states, so it’s worth exposing why these joint wills aren’t a great idea, even if you could do one in another state.

Problems With Joint Wills

One problem is that in a joint will, you almost always will need both parties’ (spouses’) consent to modify or amend that will. And yes, even if you’re long separated, or in the midst of a lengthy and contentious divorce–if you’re still legally married, both of you must agree to modify a will.

Worse, if one spouse predeceases the other, the will cannot be modified at all. Whatever disposition of property is listed in the will at the time of the spouse’s death, will be what happens. That means that you cannot later change your mind about where your property goes–even long after your current spouse’s death.

Joint wills generally leave all of the property of one spouse to the other, in the event that one spouse predeceases the other. If that’s what you want, a joint will may not be a bad idea. But in many cases, spouses may want property to go to other family relatives, or children of a prior marriage, and then, there can be problems with a joint will.

Public Exposure

Remember as well that wills get filed in the court–which are public records. When you pass away, you may not care who knows what about your finances. But if your spouse passes away before you, your joint will becomes public record, thus exposing to the world what your assets are, while you are still around.

Using a Mirror Will

The better option is to have a mirror will, which is a will that essentially is the same as your spouse’s, and says the same thing, if that’s what you want–but because they are two separate documents, each spouse maintains some freedom and independence to modify or amend the will as needed.

You can even execute what’s known as a mutual will agreement, which prohibits spouses from changing their own will without the other’s permission, if that’s something that’s important to you. But again–that can also cause restrictions, and make it difficult to alter or amend wills.

Elective Share Protections

Remember as well that Florida law protects spouses via their elective share. Much of the incentive to do a joint or even a mirror will, is to protect a spouse, but that’s a protection that’s already built into Florida law.

Need a will or have a question about a will that’s in probate court? Call the West Palm Beach probate law attorneys at The Law Offices of Larry E. Bray today.

Source:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.701.html