Last updated on October 31st, 2018
Virginia Marital Wills
A basic Virginia marital will is a single document executed by more than one person, typically spouses. These include standard joint wills, mutual, and mirror wills. Joint documents contain distributions of property, as established by each “executor.” You and your spouse are each considered executors of the joint wills.
Joint wills and mutual wills serve together to cover estate property, while delegating separate property distributions for each executor. However, each operates slightly differently.
As stated, a joint will carries separate property division as enacted by you and your spouse. Your property is distributed to your beneficiaries, and your spouse’s property to their beneficiaries. Your portion of the will has an effect on only your property.
However, in a joint will between spouses, you are agreeing to leave your property to your surviving spouse. In planning, you each leave your property to the other. Then, you each designate separate beneficiaries. When the surviving spouse perishes, the beneficiary designations of each spouse becomes active.
A joint will is beneficial if you fear your spouse will remarry, leaving the new spouse part or all of the estate. Your surviving spouse is unable to change or revoke the will once you have perished. Joint wills are flexible during your lifetime, but become binding once an executor is deceased. The surviving spouse must honor the terms of the joint will, even after remarrying.
A mutual will is binding between you and your spouse. As executors, you are acknowledging and accepting a formally binding agreement sharing mutual intentions. Whereas a joint will allows you each to form separate documents and combine them, a mutual will requires executive agreement formed in a single document.
Unlike joint wills, mutual wills are less flexible and are not intended to be revoked by either party once it is enacted. The bond of a mutual will intends to prohibit the surviving spouse’s disposal of property. Your property is ensured to pass to your children, grandchildren, or otherwise designated beneficiaries. The mutual will is binding, including the event of spousal remarriage or additional children.
A mutual will has four basic requirements that must be met in order to become a binding document.
- The formatting of your agreement must be legally acceptable. It’s best to consult an attorney when you are forming all will documents to ensure you are taking all of the necessary steps. Failing to adequately draft your estate documents risks your ability to secure your property once your spouse inherits it.
- Your mutual will must be contractual. In other words, you and your spouse must attest to your agreement of the will and all contingencies therein. Both executor signatures are required in order for the document to become legally binding.
- As executors and spouses, you must both intend that the will be considered irrevocable.
- During formation of your mutual will, you and your spouse must agree that the surviving party must intend for the will to reflect your mutual agreement.
A mutual will is able to be mutually revoked during both spouses lifetimes. However, the ability to revoke the will depends on the language of your mutual will document. Drafting a mutual will that specifically or implicitly bars revocation makes it irrevocable.
It’s important to remember that each state forms its own estate laws. Therefore, you must take your state’s laws and regulations into consideration when you are forming your joint or mutual will documents. Additionally, you are still advised to keep your estate plans up-to-date. Major changes, such as relocating, may carry legal implications on your estate plans due to a change of estate laws. Consult with a lawyer to ensure your estate plans are updated and comply with your state’s laws.
Joint and mutual wills should not be confused with a “mirror will”. A mirror will is a document in which you and your spouse’s wills are identical, leaving each estate to the same beneficiaries.
For example, a mirror will states that everything is left to the surviving spouse. Each spouse also agrees that upon the death of the surviving spouse, everything passes to the same beneficiaries, such as children or grandchildren. A mirror will is established in complete agreement of all estate plans.
Mirror wills are less commonly used in order to protect separate spousal properties. The terms are binding and irrevocable, which disables the surviving spouse from disposing of property by sale, transfer, or gift. The terms of a mirror will may cause distress if your spouse is unable to afford the property alone, but is unable to relinquish ownership until death.
Virginia marital wills are useful for spouses who are seeking to plan their estate together. Joint planning eliminates the complications and hassles of separate planning, while providing individual jurisdiction over your estate property.
Schedule a consultation with our estate planning attorney to discuss your Virginia marital will options.