A will is a legal document that allows an individual, known as a testator, the ability to designate the way in which their assets will be distributed upon their death. Assets that may be 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:
- A signed writing;
- Created by a testator with testamentary or mental capacity; and
- Be witnessed by two or more non-interested witnesses.
It is important to note that the requirements for creating a valid will varies 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 do allow each individual spouse to still distribute specific personal property to other specific 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 descendents.
Tha 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 covers 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.
Whether or not a reciprocal will arrangement is the right arrangement 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 deaths.
Below is a list of advantages and disadvantages to consider when deciding whether or not a reciprocal will arrangement is the right arrangement for you and your partner.
- 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.
- 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 is beneficial to both partners, but in other cases the flexibility may result in a risk of 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.
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 estate planning 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.