A will is a legal document that allows an individual, known as a testator, the ability to designate how their assets will be distributed upon their death. Assets designated for distribution in a will may consist of both real and personal property. Typically, in order for a will to be valid, the will must be:
It is important to note that the requirements for creating a valid will vary by state.
A reciprocal will, also sometimes called a “mirror will,” is a specific will used by married couples or life partners as a means of transferring all of their property to their surviving spouse or partner upon their death. As the name indicates, reciprocal wills between spouses are essentially two separate wills that are mirror images of one another.
However, reciprocal wills allow each individual spouse to still distribute specific personal property to other beneficiaries besides the other spouse. After specific transfers to beneficiaries, the surviving spouse will then receive the entirety of whatever is left of the decedent’s (spouse who passed away) estate.
Additionally, in the case where the beneficiary spouse or partner has already become deceased, a reciprocal will allows the surviving spouse’s estate to pass to the children of the deceased spouse or their other surviving lineal descendants.
Who Usually Uses a Reciprocal Will?
Reciprocal wills are most commonly used by spouses who have simple estates and agree that they want their property to go to the same person when they and their spouse are deceased. That person is often a child of both spouses.
However, people do not have to be married to use a reciprocal will. If you, your partner, or any other person shares the same intent of disposing of your property upon death, then a reciprocal will can accomplish that goal.
What Do Reciprocal Wills Cover?
The main thing that reciprocal wills cover is the distribution of a spouse’s property to the surviving spouse. As mentioned above, the purpose of a reciprocal will is to transfer the entirety of a deceased spouse’s property to their surviving spouse.
Further, similar to a normal will, a reciprocal will also cover many other different legal matters, including:
- Burial preferences or instructions regarding funeral arrangements;
- Instructions for the management of estate debts and taxes;
- Instructions for the continued management of joint or independently owned businesses;
- Creating a trust or guardianship for the care of surviving children;
- Specific bequests of personal or real property to beneficiaries other than the surviving spouse; or
- Transfer of intangible assets, including business goodwill or retirement funds.
As can be seen, when drafting a reciprocal will it is important to consider the disposition of each spouse’s estate to one another upon the death of the other spouse. It is also important to factor in the other matters that are involved in properly drafting a valid will.
What are the Advantages and Disadvantages of Utilizing Reciprocal Wills?
Whether or not a reciprocal will arrangement is right for you and your significant other will depend on various factors. These include both of your individual needs and desires for the disposition of your respective estates upon your death.
Below is a list of advantages and disadvantages to consider when deciding whether or not a reciprocal will arrangement is a right arrangement for you and your partner.
Advantages:
- Reciprocal wills are typically more simple and less expensive than drafting a joint or mutual will;
- Reciprocal wills allow for partners to avoid the time and expense of the probate process; and
- Reciprocal wills allow partners to pass the majority of their estate to their partner without having to deal with their state’s intestate succession laws.
Disadvantages:
- Reciprocal wills are impractical if either of the spouses were previously married and had children that resulted from that marriage, as children from a previous marriage would not be included in a reciprocal will arrangement;
- Reciprocal wills are impractical if you and your spouse are unable to agree on who to leave your property to in the event of both of your deaths; or
- Either spouse is free to change their personal will arrangement at any time. Because a reciprocal will leaves all of your estate to the surviving spouse, if the surviving spouse later remarries and creates a new reciprocal will with their new spouse, children of the first marriage or named beneficiaries may lose their inheritance.
As can be seen, there are numerous advantages and disadvantages of utilizing a reciprocal will arrangement for the disposition of your estate upon your death. In some cases, the flexibility and simplistic reciprocal will arrangement are beneficial to both partners. Still, in other cases, the flexibility may risk one spouse’s children or named beneficiaries losing their inheritance.
Additionally, the laws of each state may also affect whether or not a reciprocal will arrangement is beneficial to your particular circumstances, as state estate planning laws differ from one another. For instance, some states do not allow a spouse to collect property from a deceased spouse unless they survive the other spouse for a certain period of time.
Should I Use a Reciprocal Will?
A reciprocal will is a common and effective estate planning tool for agreeing with your spouse about distributing each other’s property after death. Although a reciprocal will doesn’t guarantee that your spouse will not change the will after you die, it indicates that you wish your property to be distributed with the hope that your partner will carry out your last wishes.
What Happens to a Reciprocal Will After Someone Dies?
If you and your spouse or partner have a reciprocal will and one of you dies, the will of the dead partner will be probated in court. This means the will is submitted to the probate court to make sure the estate is administered according to the terms of the will.
If you use a standard will, the court will distribute the entire estate to the surviving spouse. When that surviving spouse dies, their will is also submitted to probate, and the court will enforce the terms of that will. If the surviving spouse did not change the will before they died, then the wishes of both spouses will be carried out after both spouses die.
Should I Hire an Attorney for Help with a Reciprocal Will?
As can be seen, reciprocal wills can be a great option for couples seeking a simplistic and cost-effective way to dispose of their estates upon their death. However, reciprocal will arrangements are not always the best or most cost-effective estate planning solution for couples with complex estate planning needs, such as previous marriages or relationships with children.
Thus, it is important to consult with a well-qualified and knowledgeable will attorney before you and your partner draft a reciprocal will to ensure that all of your needs and desires for the disposition of your estate are met.
An experienced estate planning attorney can advise you on whether or not a reciprocal will arrangement is appropriate for your personal circumstances and wishes, as well as help you draft your will. Additionally, an estate planning attorney can represent you in the event that a dispute arises as to your will.
