Couples often choose to leave their assets to one another in their wills.
While usually unnecessary, there are certain situations where such as will could be useful, such as if you want to ensure that your property goes to the right person after both of you die.
In this scenario, couples sometimes choose to create “joint” wills.
A joint will is a single piece of paper that, upon the death of each party, is admitted into probate as if it were two different pieces of paper.
Put simply, you and your spouse can use this will to jointly decide how to distribute all of your assets after both of your deaths.
However, under Virginia’s current inheritance laws, joint wills are extremely difficult to create, and are generally a bad idea for a wide variety of reasons.
In this article, we’ll go over the basics of joint wills in Virginia.
We’ll also talk about why mirror wills are usually a better option for couples who are considering whether or not to make a joint will.
Marital Wills in Virginia
To simplify this entire issue, Virginia courts generally recognize one document per person when it comes to wills.
This is because, quite frankly, joint wills can lead to massive headaches during the probate process, both for you and for the court.
While some other states recognize marital wills such as joint or mutual wills, they are widely regarded as a bad idea in Virginia for several reasons, as we’ll outline below.
In a joint will, you and your spouse both leave all your property to one another.
Then, after both of you pass away, your marital property will be distributed as it says in the will.
Importantly, a joint will becomes a binding contract after you or your spouse pass away. Before that, either of you are free to revoke the will.
After your death, however, your spouse won’t be able to change the previous agreement in any way.
This can cause problems if, for example, your beneficiaries have children, divorce, or undergo similarly life-changing circumstances after you die, but before your spouse does.
In those cases, you can end up with a will that neither you or your spouse would want in the first place.
While joint wills have been important historically, in the modern day most lawyers discourage their clients from choosing them.
The most obvious reason for this is that most courts do not recognize joint wills.
That’s because there’s simply too much potential for things to go wrong if circumstances change after your death.
Mutual wills are rarer than joint wills, but the concept is similar.
The main difference is that a mutual will represents a binding contract as soon as you sign it.
Neither of you can revoke the will without the other’s agreement, even if you are still both still living.
Unfortunately, mutual wills have all the same issues as joint wills.
Consequently, most Virginia courts do not recognize mutual wills as legitimate legal documents.
Why are These Wills a Bad Idea?
Joint wills are generally a bad idea because of the headaches caused by the gap in time between the death of one spouse and the death of the other.
To be more specific, after one spouse passes away, the surviving spouse controls their marital assets.
However, the presence of a joint will can greatly limit the surviving spouse’s ability to use these assets as normal property.
For example, let’s say that a couple makes a joint will which leaves their shared home to their son.
However, after the death of the mother, the father decides to sell this shared home and move into a smaller apartment.
In doing so, the father effectively goes against the contents of the joint will, which means that the son will have to sue his father to enforce the original “contract” or provisions in the will.
At this point, the case would devolve into nitpicky contract litigation as each side would argue over how to fix this rather complicated situation.
Further, as noted above, joint wills come into effect upon the death of a single testator.
This means that the joint will goes into effect as soon as one spouse dies, meaning the other spouse will have to honor the will until their own death, or risk a breach of contract and all of the headaches associated with it.
For these reasons, Virginia courts generally do not recognize joint and mutual wills as valid contracts.
What is a Mirror Will?
To avoid all of these issues, spouses interested in signing a single joint will often choose to instead sign separate “mirror wills.”
Mirror wills work exactly like they sound. Your will is a mirror of your spouse’s will, and each will states the exact same things.
Most of the time, these wills can be as simple as stating that you leave all of your property to your spouse.
However, you can also draft your will so that you don’t have to update it after the passing of your spouse.
For example: “I leave all my property to my spouse. If my spouse is deceased I leave all my property to my son.”
Advantages of a Mirror Will
There are several advantages to opting for mirror wills instead of one joint or mutual will.
One major benefit is that Virginia courts are simply much more likely to recognize mirror wills, whereas it’s incredibly rare for a Virginia court to accept a joint will.
However, you should still work with a lawyer to make sure your agreement is legitimate.
While mirror wills tend to be relatively simple, complex issues such as the guardianship of minor beneficiaries can still cause legal problems.
One other advantage of mirror wills is that each spouse may revoke their will should they feel the need to change or update the will.
Further, despite the name, you can also add slight differences to your individual mirror wills.
For example, each will can name additional, separate executors for their will, and can divide any separate property as needed.
However, you should make sure that your wills agree on all he details of marital property division in the event that you both pass away at the same time.
What are the Downsides of a Mirror Will?
While mirror wills have many benefits, they also carry several downsides.
For example, you might be uncomfortable with the fact that your spouse can change the will after your death.
If your spouse chooses to do so, they will not be obligated to alert the will’s beneficiaries.
This could result in a situation where your chosen beneficiary loses their inheritance unexpectedly.
It’s understandable to be worried about how much power a mirror will gives the surviving spouse.
In that case, you and your spouse might be better off with separate wills that allocate your property as you see fit.
While it can be more complicated and expensive to do so, drafting separate wills has the advantage of avoiding unexpected changes down the line.
However, under basically no circumstances should you opt for a joint or mutual will in Virginia.
Even if the idea seems appealing, the fact of the matter is that very few Virginia courts recognize these types of will as valid.
Although simple in theory, joint wills tend to be problematic in practice.
However, even mirror wills can cause confusion in certain cases.
To make sure that your will answers the questions you want it to, you should consider speaking with a Virginia estate planning lawyer.
An experienced attorney can help explain what happens to your property after you die, and what you can do to make sure it goes to the right places.