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Do married couples write separate wills? If so, and both die at the same time, which is honored in regards to shared property?
21 ANSWERS
Edwin K. Niles
Simultaneous death mostly occurs in the movies or mystery novels. Yes, they should have separate wills.
Answered on Nov 07th, 2013 at 6:51 PM
Trusts and Estates Attorney serving Troy, MI
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Barron, Rosenberg, Mayoras & Mayoras, P.C.
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There is usually a presumption in the law called the simultaneous death act that creates a legal fiction that each survived each other.
Answered on Nov 06th, 2013 at 9:12 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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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.
Answered on Nov 06th, 2013 at 9:12 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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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.
Answered on Nov 06th, 2013 at 9:11 PM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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At least in Louisiana, where I practice, husband and wife have to have separate wills.
Answered on Nov 06th, 2013 at 9:11 PM
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.
Answered on Nov 06th, 2013 at 9:11 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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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.
Answered on Nov 06th, 2013 at 9:11 PM
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.
Answered on Nov 06th, 2013 at 9:10 PM
Walter H. Bentley
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.
Answered on Nov 06th, 2013 at 9:10 PM
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.
Answered on Nov 06th, 2013 at 9:10 PM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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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.
Answered on Nov 06th, 2013 at 9:10 PM
Estate Planning Attorney serving Seattle, WA
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Law Offices of Scott K. Wilson
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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.
Answered on Nov 06th, 2013 at 4:55 PM
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.
Answered on Nov 06th, 2013 at 4:55 PM
Divorce Attorney serving Bingham Farms, MI
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Gottlieb & Goren, P.C.
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Yes, and the Will should address the simultaneous death issue.
Answered on Nov 06th, 2013 at 4:54 PM
Business Law Attorney serving Bingham Farms, MI
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James T. Weiner, P.C.
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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).
Answered on Nov 06th, 2013 at 4:53 PM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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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."
Answered on Nov 06th, 2013 at 4:53 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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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.
Answered on Nov 06th, 2013 at 4:52 PM
2 Awards
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.
Answered on Nov 06th, 2013 at 4:49 PM
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.
Answered on Nov 06th, 2013 at 4:49 PM
3 Awards
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.
Answered on Nov 06th, 2013 at 4:49 PM
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.
Answered on Nov 06th, 2013 at 4:48 PM