Do Both Husband and Wife Need Their Own Wills?

Your Will is a document that allows you to transfer the property that you own on your death to the people or groups that you want.  Since you can only transfer your property, and not your spouses’ property, they need their own Will to give their things to the folks that they want.

Rarely we will see a “joint” Will, which is one Will made for both the husband and the wife. These joint Wills were usually prepared many, many years ago when some attorney’s still used them.

There are many potential problems with having this type of Will. The most obvious is that the Will cannot be changed in any way after the first spouse dies. So if you want to later change a beneficiary, or change or add an Executor, or even do some tax planning, you can’t. You are locked in. If you have a joint Will, and you and your spouse still have capacity to make new ones, you and your spouse really need to make new separate Wills.

If you have any questions about making Wills, or would like a no-cost review to see if your current Wills do what you want them to, please give us a call or email to set up an appointment.

53 comments to Do Both Husband and Wife Need Their Own Wills?

  • Michell Bradie

    Under Texas law, that is correct. You own your one half community interest in the property, and if the land is also your homestead, will have a spousal homestead right in the property as well. That means that if you are living there as your homestead, and paying the bills, his children will not be able to force the sale of the home while you are there. Blended families can be very complicated. It is especially important to have properly drafted Wills when there are children from a prior marriage or relationship.

  • Carole e

    What if I don’t have children but my husband does , how can I have my portion of the house go to my niece and nephew and my husbands portion can go to his child

  • Michell Bradie

    Assuming that the house is community property, and that you own half an interest in the house, you may leave your community share of the house to whomever you wish in your Last Will and Testament. Under Texas law, even if you owned 100% interest in your house as your sole and separate property, any spouse living in that house as their primary homestead will retain a homestead right in that house upon your death. That means that so long as they are paying what they need to, and living there as their homestead, your beneficiary will not be able to force them out of the house or force a sale of the house. So, assuming that you own half the house and leave your half to your niece and nephew by your Will, upon your death, your husband still has a right to live there, partly because he owns half of it, and also because he retains his homestead right in the whole house. Now, if he decides that he wants to move out and sell it, he will need your niece and nephew to agree to the sale, since he would only own his half of the house. If you have other questions in this regard, please give our office a call.

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