Many couples prepare their Wills at the same time. It is quite common to have the respective Wills mirror each other. For example, one spouse (which I will call “Spouse 1”) names the other spouse (which I will call “Spouse 2”) as executor and gifts their entire estate to the other spouse. Reciprocally, Spouse 2 will name Spouse 1 as executor and gift their entire estate to Spouse 1.
In the normal course, many testators want their estate to go to the surviving spouse and then after the second spouse passes away, the estate is divided amongst the children of the spouses.
In most scenarios, this way of estate planning accomplishes the individual testator’s goals. However, it is not suitable in every situation. This is because nothing in mirror Wills prohibits the surviving spouse from changing their Will after the first spouse passes away.
One scenario where Mirror Wills are frequently an issue is in situations involving second marriages with blended families and children from previous relationships. The problem arises when Spouse 1 passes away leaving everything to Spouse 2 with the expectation that when Spouse 2 passes away, Spouse 1’s children will receive their inheritance from Spouse 2’s estate. Unfortunately, Mirror Wills do not offer any protection against Spouse 2 changing his or her Will to exclude Spouse 1’s children from receiving their inheritance.
There is a Will option available that offers protection from the sort of problem mentioned above, these are called “Mutual Wills”. Mutual Wills ensure that the surviving spouse cannot change his or her Will after the first spouse passes away. Regrettably, like many problems in law, fixing one problem results in other unexpected problems.
In order to be effective, Mutual Wills require a contract between the spouses. This is in addition to the Wills for each spouse. Entering into this contract will require each spouse to retain their own lawyer to draft the contract. This will result in considerably more legal fees.
One of the benefits of Mutual Wills is also one of its major problems. Mutual Wills force both spouses into a “cementing” their estate plan. In my opinion, an estate plan that does not offer any flexibility to deal with changing family dynamics and family needs, is not an ideal estate plan.
In my law practice, I do not accept retainers for Mutual Wills because there are much more flexible estate planning options. Spousal Trusts or Family Trusts provide the certainty of Mutual Wills but can be drafted to allow for flexibility to meet future objectives.
For many couples, Mirror Wills will never create any problems; however, it is important to understand that there are potential problems. Understanding potential problems with Mirror Wills allows you to make an informed decision on how you want to plan your estate.
If you have any questions about Mirror Wills versus Mutual Wills or different Trusts available to achieving your estate planning objectives, please do not hesitate to contact my office. The initial consultation is always free of charge.