Reciprocal Wills for Couples

Many couples making wills decide on what's called reciprocal wills, each drafting a will that "mirrors" the other's will and leaving everything to the remaining spouse. If the combined estates of both you and your spouse are less than the amount allowed before you must pay federal estate taxes, this may be all you need in the way of estate planning.

After providing for specific bequests of tangible property (sentimental or family items), a reciprocal will provides that the remainder of the estate goes to the surviving spouse. Reciprocal wills typically go on to provide that, if the spouse has already died, the remaining property goes equally to the children of the couple.

A question many parents with young children have is: "What happens if we both die at once? The answer, of course, depends on whether any practical planning has been done. Have you found a capable and willing guardian for the children? Are funds available to support them? Without a good answer to both questions, legal advice isn't going to help much.

Most simple wills prepared for parents have a clause to deal with the "common disaster" situation. Each spouse's will says, in effect, "all my property to my spouse, if he/she survives me by at least 30 days. Otherwise, all goes to the children." There's nothing special about the 30 day time period, but it should always be less than six months to keep the tax-free status of the property transfer to the surviving spouse.

But what if either or both the wife and husband have children from a previous marriage? In that case, their wills are very often not mirror images. Each spouse has probably brought individual separate property into the marriage. Each might want the current spouse to have use of that separate property too, if the current spouse survives. If the current spouse is already dead, though, each parent might wish to leave that separate property only to his or her own children.

Most states have adopted the Uniform Simultaneous Death Act, which applies when the spouses' wills say nothing about who survived whom, or when there are no wills. Under this Act, each spouse is treated as though he or she were the survivor. With the other spouse presumed to be gone already, nothing would go from one dead parent to another.

The Uniform Simultaneous Death Act also provides that if an insured person under a life policy and a beneficiary die at the same time, the insured person is presumed to have survived and the policy proceeds go to the alternate beneficiary.

Michael Palermo is a Lexington, Kentucky estate planning lawyer and Certified Financial Planner. More information about estate planning can be found on his Web site.

Estates, Wills & Probate Message Board for more help