Do married couples have separate wills? - Estate Planning Law Questions and Answers- LawQA.com

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Do married couples have separate wills?

Do married couples write separate wills? If so, and both die at the same time, which is honored in regards to shared property?

Answer By Edwin K. Niles

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Simultaneous death mostly occurs in the movies or mystery novels. Yes, they should have separate wills.

Answer Applies to: California
Replied: 11/7/2013


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They should have separate wills. How the estates are handled if they die at the same time depends on the wills language if they provided for it, or state statutes on joint deaths.

Answer Applies to: Nevada
Replied: 11/7/2013


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It is always recommended that each person have a will. If both die at the same time, the courts will have to make that determination and will distribute the property accordingly (to the wills). If the shared property is anything but the homestead, each person?s share will be distributed according to their will. If the homestead is the property that is shared, their heirs will own the homestead equally.

Answer Applies to: Florida
Replied: 11/7/2013

Answer By Norman B. Krone

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Each should have a Will. Provisions are available which state what happens and which Will has priority if there is contemporaneous death. Consult an attorney to draft the Wills on your behalf.

Answer Applies to: Florida
Replied: 11/7/2013


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Yes, married people have separate Wills. If they both die at the same time, there is either a provision in the Will that deals with this issue or it is covered under Michigan law. In the case of Michigan law, if someone dies within 120 hours of their spouse, they are deemed to have predeceased him or her. In such cases, the estate would likely be split, 50/50.

Answer Applies to: Michigan
Replied: 11/6/2013

Answer By Edward M. Burgh

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It would be unusual if you are married, especially if you had children to have separate Wills. If you insisted on separate Wills - do not give the same thing to two different persons. You would have a problem if you died in the same incident and gave the same thing to two people who are not married.

Answer Applies to: California
Replied: 11/6/2013

Answer By Don Rosenberg
The Center for Elder Law
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There is usually a presumption in the law called the simultaneous death act that creates a legal fiction that each survived each other.

Answer Applies to: Michigan
Replied: 11/6/2013

Answer By Victor Waid
Law Office Of Victor Waid
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Married persons can have separate wills. In the event both die simultaneously, the statute treats person's death as if each has died before the other person, which acts like a push, compelling 50/50 division of the assets.

Answer Applies to: California
Replied: 11/6/2013

Answer By Brian Haggerty
Minor, Bandonis and Haggerty, P.C.
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Yes. In modern times, women are (generally) considered to be people, and so each spouse has their own will. It is very rare that both will die at the same time. If you're in an auto accident, and you get hit on the driver's side, then often it would be concluded that the driver died shortly before the passenger. In any case, wills for husband and wife will generally provide for the order in which they are to be probated, in the event of a true simultaneous death. There is much less pressure on this, as so few couples are subject to federal estate tax now. However, if husband and wife have separate estate plans, benefiting different people, then this would matter. If husband and wife have commingled their funds, so that it is not possible to determine whose money is whose, then they should develop one consistent plan, so that it doesn't matter who dies first. Protection will be needed in the plan to keep the survivor from changing the plan after one has died.

Answer Applies to: Oregon
Replied: 11/6/2013

Answer By Frances Headley

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Yes, married couples have separate wills. If it can not be determined who died last, then the court will infer one or the other unless their wills dictate a choice.

Answer Applies to: California
Replied: 11/6/2013

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