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Jun 12, 2011

Do Couples Need Separate Wills?


The simple answer is yes. Each spouse should have his/her own will.  A will sets forth what the testator (the person making the will) wants to happen to his/her property at death. Every adult should have his/her own Will.  The question remains however, what is considered your property?

Married couples usually own most, if not all, of their valuable property together. If you want to leave everything to your spouse, as many people do, you don’t need to worry about what belongs to you and what belongs to your spouse. If you’d rather divide your property among several beneficiaries, you’ll need to know just what’s yours to leave.

Most states use the “common law” system of property ownership. In these states, it’s usually easy to tell which spouse owns what. If only your name is on the deed, registration document, or other title paper, it’s yours. You are free to leave your property to whomever you choose, subject to your spouse’s right to claim a certain share after your death. See your attorney regarding Inheritance Rights.

If you and your spouse are named on the title, you each own a half-interest in the property. Your freedom to give away or leave that half-interest depends on how you and your spouse share ownership.  If you own the property in “joint tenancy with right of survivorship” or “tenancy by the entirety,” the property automatically belongs to the surviving spouse when one spouse dies — no matter what the deceased spouse’s will says. But if you instead own the property in “tenancy in common”, then you can leave your half-interest to someone other than your spouse if you wish.

If you live in a community property state, the rules are more complicated. Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Generally, money earned by both spouses during marriage and all property bought with those earnings are considered community property that is owned equally by husband and wife.  Likewise, debts incurred during marriage are generally debts of the couple. At the death of one spouse, his half of the community property goes to the surviving spouse unless he left a will that directs otherwise.

The best legal practice requires a husband and wife to have separate wills, so everything is clearly set out. You want to make sure your will conforms exactly to your wishes and the language isn’t confusing. If your will isn’t done properly, your heirs will be the ones to find out after you’ve passed away. See your attorney to better understand your rights and responsibilities in preparing your will.