Mutual Wills

A tool to help ensure your children aren’t disinherited

When spouses only have children together (i.e. no stepchildren), there is typically little concern that their children will eventually receive their cumulative estate.

In the case of blended families, things can be more complicated.  Consider the example where a husband and wife have wills that leave their estate to each other and, then, once both have passed away, the estate passes to their children and stepchildren.  In this example, if the wife passes away first, then her estate goes to the surviving husband.  The husband then has a clause in his will stating that when he dies his estate passes to his children and stepchildren.

The general rule is that someone can revoke their will at anytime provided they have the necessary mental capacity to do so.  That means in the above example the husband could create a new will after his wife’s death that excludes his stepchildren.

To avoid the above possibility and potential litigation, spouses have the option to create mutual wills that are binding.  The spouses would agree in writing not to revoke their wills during their lifetime except by agreement.  After the first spouse passes away, the surviving spouse is then bound by the terms of his/her mutual will.

Consider whether mutual wills are a helpful tool in your estate planning.