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.

57 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.

  • Debbie E

    I dated my husband for 10 years before marrying him. I sold my home in 2012 and my daughter and I moved in with him. We married in March of 2013. My husband now is about to sell his home so that we can move into his parents’ home. He is buying his parents’ home through his parents’ trust. He will close on the home at the end of the month. His family wishes to keep the home in the family and if not to be divided evenly between the 3 brothers. My husband and I keep everything separate. We have no bills or anything together down to health insurance. He has an individual plan and I have an individual plan plus child. The only thing we have financially together is our year end taxes which we file jointly but he keeps any return money because he pays for everything. I write him a monthly check of $1000.00 for rent and expenses and then I pay for all groceries and essentials for the house and my expenses for me and my child. My husband has no children of his own and in his will everything goes back to his family, brothers, nieces and nephews. In the event he should pass before me, does that mean my daughter and I are out?

  • Michell Bradie

    Debbie, if your husband purchases a house during marriage, and you do not have a separate property agreement (per-nuptial or post-nuptial agreement), the property is presumed to be community property. If he purchases the property with only his separate property, and both of you agree that it will be his separate property, or you gift your interest, it can become separate property. The issues of tracing, and increases on separate property becoming community property are a bit more involved than can be properly dealt with here. However, if you assume for the sake of argument that the house will be his separate property, if you are living in that house as your homestead at the time of his death, and you have not waived that homestead right with some type of separate property agreement, you continue to keep that homestead right. What that means is that as long as you pay what you are required to by law, his heirs or beneficiaries under his Will may not force a sale of the house or force you out of the property while you are living there as your homestead. As soon as you give up homestead rights, you lose any right to remain in the house. While this may allow you to remain in the house, it likely will cause there to be bad blood between you and your husband’s family. It sounds like you might need to sit down and have a frank discussion with your husband regarding what he is willing to do to make sure that you keep a roof over your head. If he wants to assure that the house ultimately goes to his family, he may always give you a life estate in the house in his Will, allowing you to live there until you die, and then have it pass to his family.

  • Bessie

    My step mom went to Australia for cancer treatment and while there wrote up a will and she died in Australia. Will stated husband could just live on property until he died then property was to be sold and split 5 ways. My dad wrote a will and left everything to my sister. Well I have lived on property for 10 years helping parents and mortgage owed is 12.000 and fixing to get foreclosed on. I tried to talk to step brothers and sister which 1 lives in England 1 lives in Australia and 1 lives in Dallas I offered them 5,000 a piece to buy them out and they said no They want me to get survey. appraisel and an attorney and sell property I do not have money to do that. Can I stay on property and pay mortgage to prevent foreclosure. What can they do to me legally? Do I have to probate wills.

  • Michell Bradie

    The first question is who owned the property? If it was acquired during marriage, then it is presumed to be community property. If your step-mom owned half and your father owned half, then your step-mom’s Will only controls her half of the real property. Yes, her Will would have to be probated so that the judge could make the determination whether or not it was a valid Will. If so, her half of the property would be sold (only after your father no longer lives there, since he has a homestead right in Texas, whether he owns an interest or not), and the proceeds divided to the 5 folks she left it to.

    It is unclear if your father has died, but you give the impression that he has. If his Will is valid, and it does need to be probated, then only his interest in the property will pass to your sister.

    The mortgage company doesn’t care who pays the mortgage, and if it is paid current with any penalties, that should prevent foreclosure. However, just because you have been living there and helping your parents doesn’t mean you get to stay there. You might possibly have a claim for some reimbursement, but that would also be offset by what one would ordinarily pay for rent staying in the house. That is a little too complicated for discussion here.

    After both Wills have been probated, if all the beneficiaries want to sell it to you, they can. However, you can’t make them sell to you, and everyone would have to agree on a price. Since you are not an owner of the house, but maybe entitled to a portion of the proceeds of the sale, you can be evicted from the house. It is certainly not an easy situation for you, but trying to reach an agreement with your siblings may be in everyone’s best interest.

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