Do married couples have separate wills? 30 Answers as of November 07, 2013

Do married couples write separate wills? If so, and both die at the same time, which is honored in regards to shared property?

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Law Ofices of Edwin K. Niles | Edwin K. Niles
Simultaneous death mostly occurs in the movies or mystery novels. Yes, they should have separate wills.
Answer Applies to: California
Replied: 11/7/2013
Stephens Gourley & Bywater | David A. Stephens
They should have separate wills. How the estates are handled if they die at the same time depends on the wills language if they provided for it, or state statutes on joint deaths.
Answer Applies to: Nevada
Replied: 11/7/2013
Law Office of Pamela Braynon | Pamela Y. Braynon
It is always recommended that each person have a will. If both die at the same time, the courts will have to make that determination and will distribute the property accordingly (to the wills). If the shared property is anything but the homestead, each person?s share will be distributed according to their will. If the homestead is the property that is shared, their heirs will own the homestead equally.
Answer Applies to: Florida
Replied: 11/7/2013
The Krone Law Firm, LLC | Norman B. Krone
Each should have a Will. Provisions are available which state what happens and which Will has priority if there is contemporaneous death. Consult an attorney to draft the Wills on your behalf.
Answer Applies to: Florida
Replied: 11/7/2013
Frederick & Frederick PLC | James P Frederick
Yes, married people have separate Wills. If they both die at the same time, there is either a provision in the Will that deals with this issue or it is covered under Michigan law. In the case of Michigan law, if someone dies within 120 hours of their spouse, they are deemed to have predeceased him or her. In such cases, the estate would likely be split, 50/50.
Answer Applies to: Michigan
Replied: 11/6/2013
    Law Office of Edward M. Burgh, APC | Edward M. Burgh
    It would be unusual if you are married, especially if you had children to have separate Wills. If you insisted on separate Wills - do not give the same thing to two different persons. You would have a problem if you died in the same incident and gave the same thing to two people who are not married.
    Answer Applies to: California
    Replied: 11/6/2013
    The Center for Elder Law
    The Center for Elder Law | Don Rosenberg
    There is usually a presumption in the law called the simultaneous death act that creates a legal fiction that each survived each other.
    Answer Applies to: Michigan
    Replied: 11/6/2013
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    Married persons can have separate wills. In the event both die simultaneously, the statute treats person's death as if each has died before the other person, which acts like a push, compelling 50/50 division of the assets.
    Answer Applies to: California
    Replied: 11/6/2013
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    Yes. In modern times, women are (generally) considered to be people, and so each spouse has their own will. It is very rare that both will die at the same time. If you're in an auto accident, and you get hit on the driver's side, then often it would be concluded that the driver died shortly before the passenger. In any case, wills for husband and wife will generally provide for the order in which they are to be probated, in the event of a true simultaneous death. There is much less pressure on this, as so few couples are subject to federal estate tax now. However, if husband and wife have separate estate plans, benefiting different people, then this would matter. If husband and wife have commingled their funds, so that it is not possible to determine whose money is whose, then they should develop one consistent plan, so that it doesn't matter who dies first. Protection will be needed in the plan to keep the survivor from changing the plan after one has died.
    Answer Applies to: Oregon
    Replied: 11/6/2013
    Law Offices of Frances Headley | Frances Headley
    Yes, married couples have separate wills. If it can not be determined who died last, then the court will infer one or the other unless their wills dictate a choice.
    Answer Applies to: California
    Replied: 11/6/2013
    Attorney At Law | James G. Maguire
    At least in Louisiana, where I practice, husband and wife have to have separate wills.
    Answer Applies to: Louisiana
    Replied: 11/6/2013
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    There is no one will for married couples; each person has his or her own. Generally, one spouse dies, the property goes to the other spouse, then that spouse dies and it is finally distributed. However, one spouse can leave his or her share to somebody other than his or her spouse. So, if you want it done right and address his and her children, etc., talk with a local attorney and have him or her draft your wills.
    Answer Applies to: Idaho
    Replied: 11/6/2013
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    Each person must have their own will, married or not. If one spouse dies and the other does not survive beyond a statutory period (120 hours in many states), the estates will be settled as if the other spouse died first. That is, the wife's estate will be settled under the assumption that the husband passed away before her, and vice versa.
    Answer Applies to: Nebraska
    Replied: 11/6/2013
    Bentley Law
    Bentley Law | Walter H. Bentley III
    Yes, married couples have separate wills. When the couple hires an attorney, both wills should be drafted at the same time. You attorney will ensure that they both meet you and your spouses wishes. There are a number of ways to handle both dying at the same time, which is why a professional drafting a will is much more preferable than trying to do it yourself. A penny saved today could cost you loved ones thousands tomorrow. Great question.
    Answer Applies to: Michigan
    Replied: 11/6/2013
    Donald T. Scher & Associates, P.C.
    Donald T. Scher & Associates, P.C. | Donald Scher
    Yes, couples do make separate wills. The will should provide what happens in the case of a simultaneous death and who is deemed to have died first. Each person can in their respective will, determine who gets the testator's share of community or jointly owned property and who gets their separate property.
    Answer Applies to: Arizona
    Replied: 11/6/2013
    Estrada Law P.C. | Michele Ungvarsky
    It is usually best to have separate wills. If both die at the same time it usually addressed in the will, if it is not most states would divide the property in half and distribute each half as designated in the will.
    Answer Applies to: New Mexico
    Replied: 11/6/2013
    Massie Law, PLLC | Sammi Massie
    Yes married couples have their own individual wills, however, they are usually written together and disposing assets in the same manner. If assets are to go to a surviving spouse, the will, if the client wishes, will name a secondary person should there not be a surviving spouse.
    Answer Applies to: Minnesota
    Replied: 11/6/2013
    Law Office of Scott K. Wilson
    Law Office of Scott K. Wilson | Scott K. Wilson
    While married couples can have one joint will, 99% of the time an attorney will recommend separate wills for each. The wills have a provision that says; "If my spouse survives me by 30 days then I leave to him or her the following . . . " So if they die at same time the bequest to each spouse is cancelled. As to joint property, each spouse owns 1/2 of such property and therefore can only "will away" a half interest. So if the husband's will says "I leave the beach house to my daughter" and the wife will says " I leave the beach house to my son" and they die at the same time, the daughter and son become equal 1/2 joint owners.
    Answer Applies to: Washington
    Replied: 11/6/2013
    Ben T. Liu Law Office
    Ben T. Liu Law Office | Ben T. Liu
    Yes, in the wills there should be a provision for the wife or husband to have survived the other spouse in the event of deaths at the same time.
    Answer Applies to: Michigan
    Replied: 11/6/2013
    Gottlieb & Goren, P.C.
    Gottlieb & Goren, P.C. | Aaron W. Goren
    Yes, and the Will should address the simultaneous death issue.
    Answer Applies to: Michigan
    Replied: 11/6/2013
    Couch Law, PLLC
    Couch Law, PLLC | SPENCER M COUCH
    Yes, married couples have separate wills. A will is an individual thing, and can only be an individual thing. You cannot have a will for more than one person. If both of you were to die simultaneously, shared property would be liquidated and distributed equally among your estate beneficiaries. If you have not specified any distributions, the entire estate will be liquidated and distributed according to the will, or the Uniform Probate Code. This is precisely why I recommend that married couples have an entire state plan including wills and a trust. A trust will allow property to be distributed according to a plan set up by the trusters (funders of the trust) and can even be distributed over time for underage children. Trusts are the simplest and most effective way to manage your assets after your death.
    Answer Applies to: Utah
    Replied: 11/6/2013
    Law Offices of R. Christine Brown | R. Christine Brown
    Yes, spouses have separate Wills in CA. If the spouses die at the exact same time, the husband's share of the assets go to the beneficiaries named in his Will (assuming there are contingent beneficiaries named in the Will) or if husband's Will leaves his estate to his wife and no one else, then his share of the assets go to his "heirs at law."Same with the wife, her share of the assets go to the beneficiaries named in her Will (assuming there are contingent beneficiaries named in the Will) or if wife's Will leaves her estate to her husband and no one else, then her share of the assets go to her "heirs at law."
    Answer Applies to: California
    Replied: 11/6/2013
    Irsfeld, Irsfeld & Younger LLP | Norman H. Green
    Generally, each person writes his or her own will. Wills should provide for who takes in the event the testator (the one whose will it is) is not survived by the spouse. For example, "I give my estate to my wife if she survives me by 40 days. If not, then I give my estate to my children, share and share like."
    Answer Applies to: California
    Replied: 11/6/2013
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    Issues of simultaneous or nearly simultaneous death are commonly dealt with in the provisions of the wills. Whether a couple has a joint will or separate will is up to them, their counselor and their desires and will as other estate considerations such as taxes.
    Answer Applies to: Michigan
    Replied: 11/6/2013
    James T. Weiner & Associates, P.C.
    James T. Weiner & Associates, P.C. | James T. Weiner
    Yes married couples have separate wills and it may be advisable that they have separate trusts depending upon the extent of their estate and the amount of tax planning that is advisable to minimize estate taxes. If they die at the same time the WILLS should have a presumption that one or the other dies first if the timing cannot be determined. that way they maximize the estate to the heirs (e.g. its an estate tax thing).
    Answer Applies to: Michigan
    Replied: 11/6/2013
    Dennis E. Valentine Law Firm
    Dennis E. Valentine Law Firm | Dennis Valentine
    Married couples should have separate wills. Most wills require that a beneficiary survive by a certain number of days, typically 30 days, in order to receive the inheritance. If both husband and wife die simultaneously or within the time set by the wills, the next named beneficiary receives the inheritance.
    Answer Applies to: Colorado
    Replied: 11/6/2013
    James Law Group
    James Law Group | Christine James
    Yes, married couples do separate wills. Each will would be probated as to 1/2 of the community property should both die together. Probate can be avoided by a living trust. Speak with an estate planning attorney.
    Answer Applies to: California
    Replied: 11/6/2013
    Danville Law Group | Scott Jordan
    Yes, there should be a his and hers will. The will should have a first to die clause and you would follow what the will says. As for shared property, is the property community property? In this case, the division of property will be based on community property standards. If any of the property the separate property of one of the decedents, the property will be distributed pursuant to that decedents will.
    Answer Applies to: California
    Replied: 11/6/2013
    Kokish & Goldmanis, P.C.
    Kokish & Goldmanis, P.C. | Bernard H. Greenberg
    Yes, they do. Each Will should include a simultaneous death clause that determines the result. For more assistance consult with an attorney specializing in estate planning.
    Answer Applies to: Colorado
    Replied: 11/6/2013
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    Each is presumed to have predeceased the other. Both need separate Wills. This information is only intended to give general information in response to an inquiry. It does not establish an attorney client relationship. This response is only based upon the limited facts presented and is merely intended to assist you in determining if you should contact an attorney to provide you with legal advice.
    Answer Applies to: Nevada
    Replied: 11/6/2013
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