Getting married is a life event that should prompt you to review and revise your estate plan. If you are getting remarried, the need to update your estate plan is magnified. While some married couples simply create reciprocal Wills and assume that they are done with their estate plans, those reciprocals Wills, on their own, are not usually sufficient to accomplish even the most basic estate planning goals. The Port St. Lucie attorneys at Kulas Crawford & Smith explain estate planning for spouses and discuss whether reciprocal Wills are a wise choice.
What Are Reciprocal Wills?
A Last Will and Testament is a legal document that allows the Testator (person creating the document) to decide how his/her estate assets are to be distributed upon the death of the Testator. Couples often execute reciprocal or joint Wills. Although people frequently use those terms interchangeably, there is an important difference. A joint Will is created using a single document that is signed by both spouses. Reciprocal Wills involve two documents, with each spouse signing one, but the terms of the documents mirror each other. The terms of a joint Will cannot be changed by the surviving spouse after the death of one spouse whereas the surviving spouse is free to modify or revoke a reciprocal Will after the death of the other spouse.
Why Do Spouses Each Need Their Own Will?
The terms of reciprocal Wills typically dictate that upon the death of one spouse all his/her assets are gifted to the remaining spouse and vice versa. The idea is that upon the death of the surviving spouse, the combined assets of both spouses will be passed down to the couple’s children. There are several reasons why you should not rely entirely on reciprocal Wills to achieve your estate planning objectives, such as:
- No guarantees. If you pass away tomorrow, and your spouse inherits all your assets, there is absolutely no guarantee that your children will ever receive any of those assets if you are relying on reciprocal Wills. Your spouse could eventually remarry or change the terms of his/her Will. Your spouse could even gamble all your assets away. There is simply no guarantee that your children will end up with the assets you intended them to have.
- No protection for assets. A Will, in general, cannot protect your assets from creditors, divorce, bankruptcy, or any of several other common threats.
- Your estate may get tied up in probate. When you use Wills to distribute the majority of your estate assets, your estate can spend months, even years, in probate. Not only will this waste time but often money as well.
- Cannot help with incapacity. Death is not the only potential threat to your assets. Incapacity can also pose a threat if you failed to plan for it. Imagine leaving all your assets to your spouse, only to have him/her develop Alzheimer’s that resulted in the appointment of a guardian who manages to squander all the assets you left to your spouse.
- No tax avoidance help. While you can leave an unlimited amount of assets to your spouse tax-free, when those assets are eventually passed down to your children, they may incur federal (and in some cases state) gift and estate taxes if the value of the estate exceeds the current lifetime exemption.
While there is nothing inherently wrong with executing reciprocal Wills, the key is to not rely entirely on them as your estate plan. Most of the above-referenced problems could be resolved by the addition of a trust to your estate plan. Talk to an experienced estate planning attorney about what your plan needs to ensure that your estate planning goals are met.
Do You Have Additional Questions about Reciprocal Wills?
To learn more, please join us for an upcoming FREE seminar. If you have additional questions or concerns about reciprocal Wills for spouses, contact an experienced Port St. Lucie estate planning attorney at Kulas Crawford & Smith by calling (772) 398-0720 to schedule a consultation.
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