As an estate planning attorney, I consult with many couples who seek to draft estate plans together to provide for their beneficiaries.
When considering an appropriate plan, it is important to note that Florida does not allow for joint wills, which are typically formed by married couples to combine their last will and testaments. A customary characteristic of joint wills is that the surviving party inherits the entire estate and neither party can change their wills upon the death of the other. Because Florida does not allow joint wills, married couples are forced to have separate will documents. This can create unique issues, especially for those who have children separate from their current marriage or relationship.
One of the main concerns with creating separate will documents is that one spouse may be able to substantially alter the will or the beneficiaries after the death of their spouse. Most spouses want to provide for each other upon the death of the other. Therefore, it is common for the wills of most married couples to transfer everything to the surviving spouse upon death. Practically, that means that upon the death of one spouse, the other acquires all assets. When there’s only one spouse left, there is nothing to prevent them from changing beneficiaries and deviating from the joint plan. One way to prevent this risk is through a mutual will agreement.
A mutual will agreement is a contract by two parties concerning the content and disposition of their wills. While this contract can serve many purposes, it is customary for these agreements to provide that neither spouse is permitted to change a will document upon the death of one spouse. In Florida, agreements on wills are specifically authorized by Fla. Stat. §732.701. The agreement must be signed in the presence of two witnesses in order to be valid. By signing this agreement, each party is restricted from materially altering their estate plan upon the death of one spouse. The agreement can serve as an important protection against the risk that one spouse might alter a joint plan.
If you have questions about whether or not a mutual will agreement can serve your needs, please call our office at (239) 970-6844 or complete our online formto request a free consultation.