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Mutual wills contracts: If I get remarried, should I make a contract with my new spouse?

02 August, 2022 • Blog
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In some circumstances, spouses (or life partners) may want to make a binding contract with each other that neither be allowed to change their will without the consent of the other.

Why would spouses want to do this?

Mutual wills contracts are most common when people have kids in a first marriage, get divorced, and then remarry a new partner. Each spouse in the new marriage wants to support the other spouse, but they also want to ensure some accumulated wealth ultimately passes to their own children, and not only to their new stepchildren. A simple example:

John and Mary get married. John has two kids from a previous marriage, Albert and Brigette. Mary has two kids from a previous marriage, Carl and Deborah. They agree to a mutual wills contract and each make new wills. John leaves everything to Mary if she outlives him; Mary leaves everything to John if he outlives her. And if the other spouse has already died, both John and Mary’s wills leave everything in equal shares to all four kids— Albert, Brigette, Carl, and Deborah.

Practically, how does this play out? If Mary dies first, everything goes to John. Since they had agreed to a mutual wills contract while they were both alive, John can no longer change his will. Remember, they agreed that neither is allowed to change their will without the consent of the other and Mary is dead, so she cannot consent. Thus, Mary is assured that, after her death, John cannot change his will and cut her kids out of ultimately inheriting their share of whatever is left of their combined estate at the end of John’s life. In this example, each estate plan provides for the other spouse and then for all four kids.

This is not the only use for mutual wills contracts, they can be used it a variety of ways. Whatever your specific circumstances, mutual wills contracts should be constructed with assistance from a lawyer to ensure they are legally binding. And, they are not the only way to make the sort of arrangements described in John and Mary’s example. Instead, for example, individuals can create a spousal trust in their will to ensure their estate supports their spouse for as long as they live and then pass an inheritance along to their own children.

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