In estate planning, there are a number of different types of wills that married couples can use to coordinate their wishes. There are mutual wills, joint wills, and the most common, the mirror will. Although the terms might sound similar, each of these types have different aspects. These can significantly affect how property is distributed and if they can be changed when one of the spouses dies.
Here is how mirror wills work, as well as how they compare to other types of wills that couples usually consider while planning for the future.
Mirror wills work much in the same way that the name suggests. They are largely identical wills executed by two different parties, usually married persons. The term mirror refers to the fact that the wills reflect the same wishes: that either all of one person’s property will be transferred to their spouse upon their death, or the specific gifts and property transfers in each will are exactly the same.
In addition, each spouse names the other as the executor, which is the person appointed to administer the estate of the deceased. In the event that both pass at the same time, each will contains language directing their estates to be distributed amongst their children or other chosen heirs.
Although each will contains almost identical language, each document is its own separate legal contract, each signed and executed by the appropriate parties, and can be revoked by the signer at any time.
There are other kinds of wills that couples can choose other than mirror wills. However, sometimes people can get tripped up by the names. Here’s how mirror wills differ from other types.
While very similar, there are key differences between mirror and mutual wills (also sometimes called married wills). One of these is that mutual wills contain can conditional language that would make the agreement irrevocable. The will may state in the event of one spouse’s death, the surviving spouse has certain limitations on the way they can distribute personal items or other property.
For example, each will may contain language that specifies a piece of real property or something else (like a family heirloom) can go to a certain family member upon one spouse’s death. Thus, when one spouse predeceases the other, distribution of the property can only be made according to the agreement they made in the mutual wills.
This type of will is more commonly used by spouses involved in second marriages or someone who wishes to protect their children in the event of a remarriage.
While mirror wills are completely separate legal documents, a joint will is actually a single legal estate planning document signed by more than one party, usually a married couple. In the past, joint wills were a tool of convenience. The couple would agree on how to distribute jointly owned property, but also allowed them to outline how they wished their separate property to be distributed as well. Each party would then sign the same document to make it effective.
A major drawback to the joint will, however, is its revocability issues. Once one spouse dies, the will officially goes into effect and it cannot be changed at all by the surviving spouse. Due to the many issues that often arise with joint wills, most estate planning attorneys do not recommend them to their clients. In fact, some states do not recognize joint wills at all, so check your jurisdiction to see if this is the case.
Mirror wills are a great way to provide a simple and cost-effective way of estate planning when a couple has similar wishes, but also provides ways for individualization. Each spouse can nominate a separate back-up executor, or add in an additional clause to gift personal items to other family members should they pass first.
Mirror wills are meant to reflect the similar estate planning wishes of a couple. However, because they are completely separate legal documents either can be revoked before death at any point. Because of this, complications can sometimes arise if the surviving spouse gets remarried, or children remarry, get a divorce, or encounter financial difficulties.
This can sometimes mean that some property or assets pass sideways outside of the family, outside of the original intent. With potential complicated family situations, something like a trust might be a better estate planning tool.
Estate planning can be a confusing process that often comes with questions, complications, and caveats. Like with all legal matters, sometimes what you don’t know can hurt your or your family, so seek out the services of an experienced will attorney before deciding on a specific type of will or trust for future planning and protection.