Having a will and an estate plan created is one of the most loving things a couple can do for each other and all the people and causes in your life, says a recent article, “I Love You, But Your ‘I Love You Will’ Needs to Go” from Kiplinger. However, if what you and your loved one have in mind is an “I love you will,” you need to know that this isn’t always the best option. Sometimes, the unintended consequences can send a very different message.
I Love You Wills refer to reciprocal last wills created by spouses where each leaves the entire estate to the other spouse outright. The remaining assets pass to their mutual children upon the surviving spouse's death.
These types of wills are usually created for couples making their first wills, those with simple estates and those who want to have a will, any will, in place before a significant life event, like getting married, having their first child or going on a long trip. Others opt for I Love You Wills because they want to avoid thinking or talking about death and creating a will and would rather have the simplest plan.
However, an I Love You Will can be an “I don’t care so much” will in some circumstances.
Control on the death of the survivor. Nothing stops the surviving spouse from changing their will after the first spouse’s death. They can easily reduce or outright eliminate any gifts to children of the marriage in favor of a new spouse, new children, stepchildren, or any other person named in the original will.
One way to address this is to create a trust for the surviving spouse. An independent trustee or co-trustee would then serve with the surviving spouse and assess distribution decisions. This makes it harder to disinherit those included in the original will, as long as they are named trust beneficiaries.
Lost opportunity for a ‘primary’ charitable bequest. Philanthropically minded people may have wished to leave something to a charity. It may be better to include a bequest in their own will, rather than waiting for both spouses to pass. A will simply stating that assets pass on the first spouse’s death to the survivor could easily cause any charitable bequests to evaporate.
No protection for incapacity. If your spouse was incapacitated when you died and couldn’t manage their financial affairs, who would be in charge of their legal, financial and health care? What would happen to their inheritance? Most people would prefer to choose the person in charge of their property on behalf of their spouse, rather than a stranger named guardian or conservator by the court. A will leaving all assets outright to the surviving spouse doesn’t offer any protection for incapacity.
While having a simple will is better than no will, having a comprehensive estate plan addressing inheritance and incapacity issues is the best plan for the future. Speak with an experienced estate planning attorney to create your estate plan to protect you, your spouse and your family.