Spouses sometimes ask whether they should sign one “joint” will or a pair of matching wills. This page explains the terms and what Kentucky law says about them.
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What Is a Joint Will?
A joint will is a single document signed by two people, usually spouses, that disposes of their property at death in an agreed manner. The usual joint will leaves everything to the survivor and, at the survivor’s death, to the persons named in the document. A joint will can effectively leave the survivor holding the property for the benefit of others, though the survivor may still use it during his or her life. Because the survivor’s right to use the property may be limited, a joint will can be unclear about what the survivor is free to do.
Are Mirror, Mutual, and Reciprocal Wills the Same Thing?
They are related, but not the same. Mirror or reciprocal wills are separate documents with matching terms, usually leaving everything to the surviving spouse. Mutual wills are separate documents in which each person agrees to provide for the other and includes additional terms, typically saying what happens after both have died.
Are Joint and Mutual Wills Contracts?
Sometimes they are meant to be. In Kentucky, a contract to make a will, or not to revoke one, must be in writing. The will must contain the material terms of the contract or expressly refer to the contract, or there must be a signed writing that proves it (KRS 394.540). Signing joint or mutual wills does not, by itself, create a presumption that there is a contract not to revoke. See Martin v. Cassady, 628 S.W.2d 888 (Ky. App. 1982). An oral promise to keep or not change a will is not enforceable in Kentucky.
Do Joint Wills Go Through Probate?
Yes. The will is probated when the first spouse dies, and again when the second dies. Even where there is a contract not to revoke, the survivor may still renounce the will and take the statutory share, because Kentucky courts distinguish revocation from renunciation. See Bauer v. Piercy, 912 S.W.2d 457 (Ky. App. 1995).
Are Joint or Mutual Wills a Good Idea?
Often they are not. A joint will is the will of both testators, so it takes both of them to revoke it, which can make changes difficult. Without a contract not to revoke, nothing guarantees the survivor will follow the plan. With a contract, the plan can be too rigid, and changed circumstances (remarriage, more children, changes in wealth, a long time between the two deaths) may lead to expensive legal proceedings to sort out. Even a firm agreement may not stop the survivor from spending down the assets.
These issues arise often in blended families. If you have children from a previous relationship and want to be sure they are provided for, there are better tools. A popular choice is an individual will with a testamentary trust for the surviving spouse’s benefit, or a revocable living trust that becomes irrevocable at the first death and holds the remainder for your children. Leaving property directly to minor children is usually not advisable, since a child receives everything outright at 18; a trust offers flexibility.
Can a Joint Will Be Handwritten?
No. A holographic will must be entirely in the handwriting of a single testator (KRS 394.040).
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