In preparing a final estate plan, it is not unusual for married couples to plan similar distributions of their property when they die. When one spouse dies, they usually want the property to go to the other spouse, and when the surviving spouse dies, they want the property to be passed on to agreed-upon beneficiaries—usually their children.
Jump ahead to these sections:
- What’s a Reciprocal Will?
- Should You Use a Reciprocal Will?
- What Happens With Reciprocal Wills After Someone Dies?
The most commonly-used resource to accomplish this kind of estate plan is called a “reciprocal will,” also known as a “mirror will.” This kind of will is simple to use and it accomplishes what many married couples want to do with their simple estates when they die.
What’s a Reciprocal Will?
Reciprocal wills are defined as individual wills that each spouse or partner makes to pass on their property at death. Each of these individual wills functions just like any other traditional will, except that each spouse’s will “mirrors” or reflects the will of the other spouse.
The wills mirror in the sense that each spouse leaves their property to the other spouse and both spouses agree on the person who will inherit their property when both spouses are deceased. In this way, each spouse is assured that if they die first, their wishes for their property will be carried out when the surviving spouse dies.
Who usually uses a reciprocal will?
Reciprocal wills are most commonly used by spouses who have simple estates and agree that when both of them are deceased, they want their property to go to the same person—often a child of both spouses.
However, you do not have to be married to use a reciprocal will. If you have a partner or any other person that shares the same intent of disposing of your property at death, then a reciprocal will can accomplish your goal.
In particular, this means that if one person dies, the other person will receive the other’s property and then pass on the property to an agreed-upon beneficiary after both people have died.
Difference between reciprocal wills, joint wills, and mutual wills
Many couples who wish to pass their property to each other, and then to a child when both spouses are deceased, consider using different kinds of wills that can accomplish the same plan.
These are joint wills and mutual wills. While they can achieve the same result, the way in which they do so can be different and provide other kinds of difficulties down the road.
Like reciprocal wills, joint wills are used to pass property to another partner upon death and then, when the surviving partner dies, to pass the property to another beneficiary noted in the joint will. What makes a joint will different from a reciprocal will, however, is that, with a joint will, both of the parties’ wills are combined into one legal document.
A single joint will ends up serving as the will for both parties. Because of this, once a partner dies, the surviving spouse can never change the will because technically the will has been executed upon the first person’s death. With a reciprocal will, each partner has their own will that mirrors the other. However, when the first partner dies, the surviving partner can still change their will if necessary.
A mutual will is a combination of a joint will and a reciprocal will. A mutual will can be used when each spouse or partner has their own will (which makes it like a reciprocal will), but a separate document contractually binds each spouse to dispose of their property in a particular way.
Because neither spouse can change the will after the first spouse dies, by using mutual wills, the spouses essentially are using a joint will.
Should You Use a Reciprocal Will?
A reciprocal will is a common and effective estate planning tool for agreeing with your spouse on the distribution of each other’s property after death. Although a reciprocal will does not guarantee that your spouse will not change their will after you die, it indicates how you wish your property to be distributed, with the hope that the partner you trust will carry out your wishes.
Possible advantages of a reciprocal will
There are several advantages to using a reciprocal will:
It states your intent. Just as a traditional will states your intent for the distribution of your property upon your death, a reciprocal will allows you to indicate your wishes for passing on your property without being bound by the wishes of your spouse or partner. By contrast, a mutual will can be appropriate, because you and your spouse agree on the beneficiaries of your property after both of you are deceased.
It can change with new circumstances. Perhaps the greatest benefit of using a reciprocal will instead of a joint will is that, when one spouse dies, the surviving spouse can change their will if unforeseen circumstances occur that would make it inappropriate or difficult to distribute the property to the beneficiary named in the will.
For example, perhaps another family member is in greater need of financial assistance or that the beneficiary first named will likely squander their inheritance. A reciprocal will allows you the flexibility of making necessary estate planning decisions as your financial circumstances change.
It doesn’t necessarily have to “mirror” your spouse’s will in all respects. Another benefit of a reciprocal will is that both spouses can agree on the disposition of their property and assure each other that their wishes will be carried out. However, it also allows each spouse to dispose of specific items of property as they see fit, even if the other spouse does not wish to dispose of property in the same way.
A very common example of this is when one spouse has children from a previous marriage. If the first spouse to die has children from a previous marriage, they may want their property to go to their spouse for their life, but then for some of their property to go to their children from the previous marriage. A reciprocal will allows one spouse to dispose of property this way without requiring the other spouse to leave their property to the same children.
Possible disadvantages of a reciprocal will
Despite its many advantages, a reciprocal will also has its disadvantages, which you should consider before you and your spouse or partner execute a reciprocal will. For example:
It does not guarantee that your surviving spouse will honor your wishes. As mentioned before, a reciprocal will allows you to direct property to your children from a previous marriage without requiring your spouse to do the same if you die before your spouse dies.
But a reciprocal will does not guarantee that your spouse will dispose of your property to your existing children. Because your spouse is free to change their reciprocal will after you die, it does not necessarily guarantee that your spouse will carry out your wishes.
It is subject to unforeseen circumstances after you die. A reciprocal will also allows your spouse to change their own will should future circumstances occur that require them to make a different distribution upon death. This can happen due to circumstances involving the following:
- Your chosen beneficiary
- The property left in the estate
- The value of the property being distributed
- The needs of other family members
- Changes in tax laws
It may limit how the surviving spouse uses their property. If you and your spouse use reciprocal wills and your spouse dies first, you will inherit your spouse’s estate. However, if you intend to honor your spouse’s wishes regardless of your circumstances, then you may not be able to use all of your property in the way you see fit.
For example, if in your reciprocal wills, you agreed that your marital home will pass to your children. But perhaps the value of your home or the circumstances of your children warrant that you sell your home, so you may not be able to do this if you choose to honor the wishes you agreed upon with your spouse in your wills.
Some of the advantages of reciprocal wills also can be disadvantages depending on the circumstances after the first spouse dies. As a result, you must be sure that you and your spouse understand each other’s wishes and the circumstances in which your wishes may be ignored. This may require some difficult conversations and a lot of trust between you and your spouse.
What Happens With Reciprocal Wills After Someone Dies?
If you and your spouse or partner have reciprocal wills and one of you dies, the will of the partner who dies will be probated in court. This means that the will is submitted to the probate court for the court to make sure the estate is administered according to the terms of the will.
If you use a standard reciprocal will, the court will distribute the entire estate to the surviving spouse. When the surviving spouse dies, then their will also is submitted for probate and the court will enforce the terms of that will. If the surviving spouse did not change the will before they died, then the wishes of both spouses will be carried out when both spouses are deceased.
Reciprocal Wills Provide Flexible Estate Planning Goals
Every kind of will offers advantages and disadvantages, depending on the circumstances of the parties. However, reciprocal or mirror wills usually offer more advantages than disadvantages.
Provided you trust your spouse to honor your wishes and you discuss your estate planning goals with each other, a reciprocal will most likely will be the appropriate choice to leave your property to your spouse for their life, and then to your children.