Joint Will

A Joint Will in the United States directs how a testator's estate is to be distributed after death and names the executor responsible for administering it. It directs the distribution of the testator's estate to named beneficiaries upon death.

The defining legal characteristic of a joint will — as opposed to two separate coordinated wills or mirror wills — is the contract not to revoke. When a joint will is coupled with a binding agreement that the survivor cannot change the will's dispositive provisions after the first death, the will becomes a contractual instrument enforceable by the intended beneficiaries. The Uniform Probate Code (UPC), adopted in modified form in approximately 20 states, addresses will contracts in UPC § 2-514, providing that a contract to make or not to revoke a will is enforceable only if evidenced by: (1) provisions of the will stating the material provisions of the contract; (2) an express reference in the will to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract.

In states that have not adopted the UPC, the enforceability of a joint will's contract not to revoke is governed by common law or state statutes that vary substantially. Some states — including Texas, under Tex. Est. Code § 254.004 — provide that a joint will creates a presumption of a contract not to revoke; others require clear and convincing evidence of a contract independent of the document itself.

The testamentary formalities for a joint will are the same as for any other will: the document must be in writing, signed by both testators, and attested by at least two competent adult witnesses who are present when the testators sign or who acknowledge the testators' signatures. Under the Uniform Probate Code § 2-502, a will may also be executed with a self-proving affidavit signed before a notary public, which simplifies the probate process by eliminating the need for witness testimony. A joint will cannot be a holographic will (written entirely in one person's handwriting) because it necessarily involves two handwritings.

The interaction between a joint will and community property law in the nine community property states — California, Texas, Arizona, Nevada, Washington, Idaho, Louisiana, New Mexico, and Wisconsin — creates additional complexity. Community property is owned equally by both spouses and passes according to its own rules; a joint will must be carefully drafted to address how community and separate property are treated, particularly if the first testator attempts to control the disposition of the surviving spouse's half of community property.

A US Joint Will is relevant to married couples and domestic partners who share a common testamentary plan — leaving everything to each other on the first death and then to specified beneficiaries (often adult children) on the second death — and who wish to bind the surviving spouse contractually to that plan so it cannot be changed after the first spouse dies.

The most common scenario where a joint will with a contract not to revoke is sought is a blended family situation, where each spouse has children from a prior marriage and the couple wants to confirm that after the first death, the surviving spouse cannot disinherit the first decedent's children in favor of the surviving spouse's own children or a new spouse. Without a binding agreement, the surviving spouse could simply revoke their own will after inheriting the first decedent's estate, leaving everything to different beneficiaries.

However, most experienced estate planning attorneys — members of the American Academy of Estate Planning Attorneys (AAEPA), the American College of Trust and Estate Counsel (ACTEC), and the National Association of Estate Planners and Councils (NAEPC) — strongly advise against joint wills precisely because the binding contract creates more problems than it solves. In the blended family scenario, a better alternative is a qualified terminable interest property (QTIP) trust under IRC § 2056(b)(7), which allows the decedent spouse to provide income for the surviving spouse's lifetime while controlling the remainder disposition to the decedent's own children — achieving the same objective without freezing the surviving spouse's financial autonomy.

Couples in states with older estate planning traditions or those working with generalist attorneys rather than specialized estate planning counsel occasionally execute joint wills without fully understanding the long-term consequences. Individuals who have already executed a joint will and are now concerned about its binding effect should consult an estate planning attorney about modification under the Uniform Trust Code's equitable deviation doctrine or the application of the state's specific will contest and modification procedures.

The joint will format is most straightforwardly appropriate when both testators have small, largely identical estates, leave everything to each other and then to the same beneficiaries, have no children from prior relationships, and have no expectation that their circumstances will change materially — making the inflexibility of the binding agreement a non-issue. Even in this scenario, separate coordinated wills are generally preferred.

A legally valid and effective US Joint Will must contain the following essential provisions to satisfy testamentary formalities, clearly express both testators' intentions, and — if a binding contract not to revoke is intended — satisfy the requirements of the Uniform Probate Code or applicable state law.

The identification of both testators must appear at the outset: full legal names, dates of birth, and the state of domicile. The will must expressly state that it is the joint last will and testament of both named individuals, and that it supersedes any prior wills or codicils executed by either party.

The revocation of prior wills clause must expressly revoke all prior wills and codicils of both testators. In states where prior wills are not automatically revoked by a subsequent will, this clause prevents probate courts from giving effect to inconsistent prior testamentary documents.

The first-death distribution provisions must specify clearly how the estate of the first testator to die is distributed. In the typical joint will, the first decedent's entire estate passes to the surviving spouse or domestic partner. The will must address what happens if the surviving spouse predeceases the testator (a lapsed-gift scenario) or if both die simultaneously — most states have adopted the Uniform Simultaneous Death Act (USDA), which presumes the testators died simultaneously and distributes each testator's estate as if the other predeceased.

The second-death distribution provisions specify how the survivor's estate is distributed after the second death. This is the key provision that both testators are agreeing to be bound by: the remainder beneficiaries (children, grandchildren, charities) who receive the estate after both spouses have died must be clearly identified with full names and, where appropriate, dates of birth or other identifying information.

The executor designation clause must name a primary executor (personal representative in states using the UPC terminology) and one or more successor executors. The executor is responsible for filing the will in probate court, marshaling and inventorying the decedent's assets, paying valid debts and taxes, and distributing the estate according to the will's terms under the supervision of the probate court. Both testators should name executors to serve after each respective death.

The contract not to revoke provision — if intended — must be expressly stated in the will document itself or in a separate written agreement signed contemporaneously by both testators and at least two witnesses. Under UPC § 2-514 and most state equivalents, the contract must clearly state: (1) that both testators agree not to revoke, amend, or alter the will or its dispositive provisions after the first death; (2) that the agreement is binding on the estate of the first decedent and on the surviving testator; and (3) the remedy available to the intended beneficiaries if the survivor breaches the agreement — typically a constructive trust imposed on the survivor's estate for the benefit of the contract beneficiaries.

The no-contest (in terrorem) clause, while not universally enforceable in all states, can deter beneficiaries from challenging the will in probate court by providing that any beneficiary who contests the will forfeits their bequest.