Legal Question in Wills and Trusts in New York

Why separate wills for spouses?

Why do spouses need separate wills? A lawyer friend of mine told me that this was what my wife and I should do, but would not give me much of an explanation as to why.

Asked on 12/01/03, 9:40 pm

4 Answers from Attorneys

Arnold Nager Arnold H. Nager, Esquire

Re: Why separate wills for spouses?

Generally spouses will make reciprocal wills. In situations where each spouse wishes to make a different disposition of property upon their death, it is less confusing to have separate wills.

Our comments are based on treating your question as a hypothetical. Accordingly, our comments could be substantially and materially different were we advised of all of the relevant facts and circumstances. Our comments are by necessity general in nature, and should not be relied upon in taking or forgoing action in your circumstances without retaining an attorney. In order to fully explore your legal matter, you should meet with us or another attorney and bring to any such meeting all relevant documents and correspondence, and any other relevant facts.

We are not hired to be your attorney, and no attorney-client relationship exists between us, unless and until you enter into a written retainer agreement with us, tender the agreed amount for a retainer and it is accepted by us. We reserve the right to decline representation should circumstances change.

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Answered on 12/02/03, 7:31 pm
Andrew Nitzberg Andrew Nitzberg & Associates

Re: Why separate wills for spouses?

Simply, you may pass at different times. However, you can simplify this matter by having your attorney make out each primary beneficiary as the spouse and have specific bequests only if the spouse is not available.

Simply, get one will and make 2 copies. Fill in the husband as the maker and the wife as beneficiary. Then fill in the wife as the maker and the husband as beneficiary in the other copy.

Have the rest of the wills identical and have the same people inheriting if both of you have passed.

That will cut your costs. (just make sure they are both witnessed properly).

You are welcome to a consultation for no fee at my offices at 42 west 44th street, NY,NY. Please call for an appointment first (646) 591-5786.

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Answered on 12/02/03, 12:32 pm
Walter LeVine Walter D. LeVine, Esq.

Re: Why separate wills for spouses?

While typically spouses will have identical dispositions of their estates, having a joint Will (which can be done) eliminates the flexibility needed for the surviving spouse. For example: family situations could change (grandchildren could survive their parents, someone could become incapacitated, afterborn children could not be named), people named as executors or trustees could no longer be available to serve, tax laws could change and the ability to adapt to the changes could be lost. There is also the possibility of remarriage and new children. If the Will makers are young, so that a remarriage is possible, but a new spouse is not to be included in the first spouses planning, I usually recommend an irrevocable trust be used in conjunction with a Will. This document can be rather flexible, but also protect assets from going to a new family that had not be in existance or going to people not desired. There are many considerations and using an attorney who can describe a broad picture of possible subsequent events and how to deal with them should be used, to assure that regardless of who dies first or second, all plans can be carried out.

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Answered on 12/02/03, 1:14 pm
Daniel Clement Law Offices of Daniel Clement

Re: Why separate wills for spouses?

Everyone should have their own will.

Daniel Clement

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Answered on 12/02/03, 3:50 pm

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