When you and your spouse have built a life together over the years – with a shared home and merged finances – it’s only natural to think your estate plan should be shared, too. But is that really the best option for you?
Many couples assume that a joint will can cover both parties’ wishes for their assets. After all, you’ve spent years making decisions in tandem with your spouse. However, when it comes to protecting your legacy under New York law, that shared approach to your estate can actually create avoidable complications.
Here’s what married couples in New York should know before choosing between a joint will and individual wills:
What’s the difference between a joint will and individual wills?
A joint will is a single document that is signed by both spouses that sets out what happens to their property when either (or both) passes away. Typically, a joint will states that when one spouse dies, everything goes to their surviving spouse. Then, when the second spouse passes, the remaining estate goes to their agreed-upon beneficiaries (which is usually their child or children).
Individual wills, on the other hand, are separate documents. Each spouse has their own will that can still mirror each other’s wishes (“reciprocal” or “mirror” wills). However, the wills remain legally independent.
While joint wills were once popular, probate courts have consistently found them problematic. Here’s why some New York estate planning attorneys recommend against them:
- They’re binding and inflexible. A joint will generally becomes irrevocable after the first spouse dies. That means the surviving spouse cannot change their estate plan – even if their circumstances drastically change. For instance, if the surviving spouse remarries, has new children or grandchildren or faces financial challenges, they may still be bound to the original estate plan. They may even be prevented from disposing of assets named in the will, like the family home, regardless of their need. That’s a lot of autonomy to give up.
- They can lead to litigation. Because joint wills can lock both parties’ wishes in stone, disputes sometimes arise over what constitutes a contractual obligation. New York courts have seen cases where heirs sued a surviving spouse for changing their will, claiming the joint will was a binding contract. This can leave grieving families tangled in litigation for years and deplete the legacy planned by the deceased.
- They may not align with New York estate law. The terms of a joint will can conflict with the spousal elective share rules that give surviving spouses certain rights under the New York Estates, Powers and Trusts Law (EPTL). That can lead to numerous probate problems or even cause a joint will to be invalidated.
Ultimately, joint wills don’t handle modern family dynamics well. Many families today are blended or have complex financial arrangements. Joint wills simply don’t provide the flexibility to adapt to second marriages, stepchildren or evolving assets. Individual wills allow each spouse to make tailored decisions that fit their personal circumstances.
Why individual wills make more sense for most couples
Creating separate wills offers each half of a couple far more flexibility, clarity and control over their assets and estate – without sacrificing the ease and coordination they want. Here’s why that’s usually the better choice:
- You can update your will anytime. Each spouse can revise their document if the laws change, new family members are born or financial situations shift. They do not need the consent of the other spouse, either. That may be important if the couple separates or simply develops different ideals and goals.
- You can include customized provisions. One spouse might own a business, another might have a family heirloom or personal inheritance – and both may want to have the exclusive right to pass those particular assets to their chosen beneficiaries. Individual wills ensure these kinds of assets are handled appropriately.
You and your spouse can still plan together. Couples often create “mirror wills” that reflect the same overall plan but remain independent. This approach keeps both partners’ wishes aligned while preserving their legal autonomy.
Final thoughts
While a joint will may sound convenient, it’s rarely the best choice for New York couples. Separate, coordinated wills provide the flexibility that many people want to adapt as their lives change. They also reduce the risk of disputes or unintended outcomes. An experienced New York estate planning attorney can help each party craft an individual will that works in harmony with their spouse’s will, and that can lead to peace of mind for your entire family.
