When a couple decides on an estate plan, it often includes reciprocal wills, meaning each person's will is a mirror image of the other's. Each person leaves the bulk of their estate to the other person. If federal estate tax isn't an issue and your personal situations aren't complex, this simple will type can be a good fit for your estate planning needs.
The basic structure of a reciprocal will sets out bequests of certain property to beneficiaries, such as sentimental items. The surviving spouse gets the rest. The will usually states if the beneficiary spouse already died, the rest of the estate goes to the couple's children.
Do Your Wills Cover All the Bases?
Take a broad view when planning your wills, even if you think your personal situation and finances are fairly simple. A major issue to address in your reciprocal will is what happens if your spouse dies before you, or dies shortly after you die, as may happen in a "common disaster." Remember, too, your wills provide your last wishes on other issues besides wrapping up your financial affairs.
Your reciprocal will likely covers the "common disaster" situation, such as a car accident or other tragedy. Each will provides all property goes to the testator's spouse, as long as the spouse survives the testator by a certain number of days, 30 for example. If the threshold isn't met, the will directs property goes to the testator's children or other beneficiaries. You can choose how long your spouse must survive after your death, but it shouldn't be more than six months, keeping the property transfer free of estate tax issues.
The Uniform Simultaneous Death Act (USDA) is a uniform law, and it addresses how a will or insurance policy should be interpreted if their terms are silent on the issue of when spouses die together, or the order of death is unknown. Most states have enacted a form of this law. If a will doesn't address the issue, each spouse is considered the survivor, preventing deceased spouses from receiving property under each other's wills.
The law also applies to insurance policies, and presumes the insured person to have survived. The alternate beneficiary you name in your policy then receives the insurance payment.
Beyond Property Distribution
Your wills do more than providing for the distribution of your property after you and your spouse die. If you're a parent of one or more minor children, one of the most important functions of your will is to name a guardian for them. Couples often agree on the guardians named for their children if they both have died, but you're not required to agree.
The same is true in naming an executor, the person who carries out the directions in your will. Spouses typically name one another as executor, but may have others in mind if their spouse has already passed away or can't serve.
When Reciprocal Wills Aren't a Good Fit
You and your spouse don't have to use reciprocal wills, and this will type isn't a good fit for everyone. Your will states your wishes and you make the decisions.
Complex relationships are almost the norm today, including successive marriages and "starter marriages." People marry later in life, and both spouses may have a financial history and assets coming into a marriage. You might not have children together; the beneficiaries of your estates, besides each other may be very different. All these factors add up to unique wills and estate plans, even between spouses who may spend many happy years together.
Questions for Your Attorney
- Is it possible for reciprocal wills to have terms that can't be changed after the first spouse dies? For example, maybe I don't want this will type unless I know my spouse will honor certain reciprocal terms, such as providing for our shared children?
- If there's a will contest, are there any special issues involved if it's a reciprocal will?
- Are there any conflicts of interest issues to disclose when a lawyer provides estate planning services to a couple and drafts reciprocal wills?
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