Wills for married couples: How to make a will with your spouse

Whether you’ve recently tied the knot or you’ve been married for years, making an estate plan with your spouse is an important part of your life together. But what steps should you take to do it, and what factors should you consider? Here’s everything you need to know about making a will as a married couple.

If I have a will, does my spouse need one?

The answer is yes — everyone should have a will! If you’re married, you and your spouse can have separate (or joint) wills that you sign yourselves. This way, if something were to happen to one of you, there’s no room for ambiguity or confusion.

A popular option for many married couples or life partners is to make mirror wills. These are almost identical wills where both partners leave their estate to the other. You also name the same people and organizations as your secondary beneficiaries. To save you time, FreeWill offers a mirror will option for married couples and couples in a domestic partnership.

Another less popular option for married couples is a joint will. This is a single, combined last will and testament for a married couple.

To make changes to a joint will, you need the approval of both partners. This means that after one spouse passes away, the surviving spouse can’t make any changes to the will. Because of this, estate attorneys recommend making mirror wills instead of joint wills, since will mirrors are more flexible.

If you and your spouse have minor children, you should agree on and name a guardian for them in your wills. If one of you were to pass away, usually the remaining parent would maintain custody. But if both of you were to pass away at the same time, your guardian would be the one to care for your children. Naming a guardian is one of the most powerful things you can do with your will, and ensures your children are cared for by someone you know and trust.

How to talk to your spouse about making a will

The easiest way to create a will with your spouse is to sit down and do it together. Having these conversations can be difficult, but it’s important for you both to understand each other’s wishes and expectations. Having these discussions now, while you’re both healthy, can remove pressure and make the conversation easier.

Here are six tips that can help you get started:

1. Put it on the calendar.

Schedule time with your spouse to talk through your estate. Try to schedule it on a day you won’t be stressed, like a quiet weekend afternoon or a day off of work. You can also couple it with an activity you enjoy, like eating takeout from your favorite restaurant.

2. Start with open-ended questions.

You don’t need to immediately jump into the details. Talk to your spouse about the people and causes that matter to each of you, and what your expectations are for what you’ll leave behind. Maybe you both agree to pass all your assets down to your children and grandchildren. Or perhaps you’d like to leave part of your combined estate to a charity that means a lot to you. Understanding what you want your legacy to look like — and comparing that to your spouse’s vision — is an important first step.

3. Consider making a positive impact by leaving part of your estate to charity.

Many people don’t realize it’s possible to donate to charity in their will. But it’s a meaningful way to support causes that matter to you. A gift in your will costs you nothing now, but is a high-impact way to empower your favorite organizations for years to come. Consider creating a lasting legacy for the causes you care about by donating to charity in your will.

4. Make a list of your assets.

This doesn’t need to be a perfect or exhaustive list — just get started! You should include all assets that are owned by either you or your spouse. To help you brainstorm, you can bucket your assets into several categories:

• Physical property: This includes your home, vehicles, and any pets (they’re considered property under the law).
• Financial assets: This includes retirement plans, life insurance policies, and bank/investment accounts.
• It’s a good idea to start a list of your digital assets, including logins and passwords for your online accounts. You can use a password manager or a digital vault to keep track of these logins, and share access with your spouse as needed.

5. Schedule another time to sit down and create your wills together.

Creating your will with your partner can make the process more enjoyable. It also allows you to consult each other so you don’t make any contradictory statements in your wills. Don’t wait too long to get it done — once you’ve started, use that momentum to carry you over the finish line!

6. Use an online will-maker to streamline the process.

Using a will template to write your will can save you time and help you avoid mistakes. If you’re looking for an inexpensive option, you can make your will for free on FreeWill in as little as 20 minutes. Our will forms are easy to follow, customized to you, and recognized as legally valid in all 50 states.

How community property laws affect your will

“Community property” refers to any assets or property acquired by either spouse during a marriage. For example, this could be a vehicle your spouse purchased with their own income, or a retirement plan that you started with your employer after getting married.

The law considers community property to be jointly owned and equally shared, even if it was only acquired by one spouse. Some states, like California, have estate laws that promise the surviving spouse a percentage of the community property acquired during their marriage.

If you have mirror wills and plan to leave all your assets to your spouse, community property laws shouldn’t be an issue. But if you want to leave a significant portion of your estate to someone other than your spouse, you should understand your state’s community property laws. You might be required to have a statement signed by your spouse saying they’re aware of this and agree to it. If you don’t, your spouse will likely still receive their share of community property when you pass away, even if you stated otherwise in your will.

Inheritance rights for blended families and stepchildren

If you’re part of a blended family, it’s important to understand how your familial relationships are viewed by the law.

Your biological or adopted children are legally considered your children. This means they’re likely entitled to part of your estate when you die.

Stepchildren, on the other hand, don’t have the same inheritance rights. By law, stepchildren aren’t considered your children, and so they aren’t automatically entitled to a portion of your property. If you want to include them in your will, you can add them as beneficiaries.

If you don’t have a will (known as dying intestate), your property is distributed based on your state’s intestacy laws. Beneficiaries from intestacy laws are generally your spouse, children, siblings, and parents. Under intestacy laws, your stepchildren will likely not receive anything from your estate.

Blended families are unique and beautiful, and many stepparents care for their stepchildren as if they were their own. When it comes to estate planning, though, the law makes a strong distinction. If you want your stepchildren to receive part of your estate when you die, you must include them as beneficiaries in your will.

Get started on your wills as a married couple

Aside from your marriage license, your last will and testament is one of the most important documents you and your spouse can make together. If you’re ready, the two of you can create your free, legally-binding wills today.

Want to learn more about how wills work? Check out our complete guide on everything you need to know about making a will.