Mutual or Married Wills

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What Are Mutual Wills or Married Wills?

The term “mutual wills” describes two or more will documents that are mutually binding upon one another. With mutual wills, the parties may agree that following the death of one of the parties, the surviving party is limited in the way that they can distribute their real or personal property. That is, each party makes an agreement with the other with regards to the distribution of their property, and such agreement forms a part of each party’s independent will. 

An example of mutual wills is where a husband and wife agree that a certain item of property will only pass to their child. Thus, if either the husband or wife dies, distribution of the property can only be made according to the agreement they made in the mutual wills.

Mutual wills were commonly made by spouses to ensure that their property went to their children, regardless of a divorce or remarriage occurring. Thus, mutual wills are sometimes called “married wills” or “marriage wills”. 

Are Mutual or Married Wills Different from Joint Wills?

Mutual wills are much different from joint wills, though they can sometimes accomplish similar aims. In a joint will, the parties both sign the same, single will document, rather than creating separate documents. This helps to consolidate the parties’ goals into one easily accessible document. 

Depending on the situation, using a joint will may be favorable, especially if the parties are only dealing with a few major property distributions. On the other hand, if each of the parties owns many different types of assets and properties, it may be more practical to use mutual wills, so that each party can address their own property, while still being able to create a limiting agreement with the other party. 

Lastly, in a joint will, the parties will usually distribute their property in a way that is identical or nearly identical with one another.  In comparison, a mutual will may limit the parties with regard to only one or a few items of property.

Are Mutual Wills Revocable?

There is some dispute as to whether mutual wills can be changed, amended, or revoked (i.e., taken back or cancelled) once they are created. There are several complicated issues to consider. For example, if one party has already been deceased, it may be difficult to have the will changed, since the deceased party is no longer around to contribute to the decision. Thus, some jurisdictions hold that mutual wills are revocable, so long as the changes or cancellation generally conform to the desires of each party.  In some cases, the court may take alternative measures such as imposing a constructive trust on the property, and having a trustee manage the property.

Thus, when creating mutual wills, the parties may also want to create special provisions that address the issue of revoking the mutual wills. These should be clearly written in order to provide instructions for future changes to the wills, especially if one of the parties has already become deceased.

Do I Need a Lawyer for Assistance with Mutual or Married Wills?

Mutual wills can be useful tools for parties that wish to deal create agreements with one another regarding the distribution of property. They operate much like a contract, and so much negotiation and discussion may occur regarding the documents. For this reason, it may be necessary to hire an estate lawyer for assistance during the negotiating, drafting, and reviewing phases of the will documents. Also, a lawyer can provide representation in court in the event that a lawsuit becomes necessary. 

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Last Modified: 04-23-2015 10:14 AM PDT

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