A couple came to my office years ago, a second marriage for both. They lived in a home in Queens he had owned, and they wanted a single will. The plan seemed fair: when the first spouse died, everything went to the survivor. When the second spouse died, the remaining assets would be split evenly between his children and her children. They saw it as an airtight guarantee.
But a joint will is rarely just a will. In the eyes of New York law, it is often a binding contract—one that cannot be changed after the first spouse dies. What they saw as a guarantee, I saw as a trap, locking the surviving spouse into a plan that might not make sense a decade later.
A Will That Functions Like a Contract
The appeal of a joint will is its apparent simplicity. One document, signed by two people, lays out a shared vision. Mutual wills—two separate but identical “mirror” wills—can serve a similar purpose. Both are designed to ensure a couple’s agreed-upon plan is carried out, no matter who dies first.
The issue is the agreement itself. When two people execute a joint will, they are not just stating individual wishes; they are making a contractual promise not to revoke it. This transforms the document. After the first spouse dies and their part of the bargain is fulfilled by leaving everything to the survivor, the will can become irrevocable. The survivor receives the assets, but in exchange, they forfeit their right to ever change the plan.
This is a profound restriction. Life is unpredictable. A surviving spouse may live for another 20 years, during which circumstances can and do change.
When a Fixed Plan Meets a Changing World
The primary danger of a joint will is its rigidity. The stewardship of a family’s assets requires flexibility, but a contractual will removes it. Consider the contingencies a surviving spouse might face:
- Unexpected Financial Needs: A serious illness or the need for long-term care creates immense financial pressure. The survivor might need to sell the family home to cover expenses, but the terms of the joint will could restrict their ability to do so.
- Changing Family Dynamics: Relationships evolve. A child may become estranged while a grandchild becomes a primary caregiver. The survivor might wish to reward that grandchild or disinherit the estranged child, but the joint will prevents any alteration.
- Remarriage: If the surviving spouse remarries, they may have a legal and moral obligation to provide for their new partner. A joint will made with a previous spouse can make this impossible, creating deep personal and legal conflict.
In these situations, the joint will ceases to be a tool for legacy. It becomes a burden, handcuffing the survivor to decisions made decades earlier under entirely different circumstances.
New York Law and the Burden of Proof
Because these wills so severely restrict a person’s right to manage their own property, New York courts are cautious. The law demands clear and convincing evidence that the spouses intended to be contractually bound.
Specifically, New York’s Estates, Powers and Trusts Law (EPTL) § 13-2.1(b) requires that a contract to make a joint will, or a promise not to revoke one, must be expressly stated in writing. The mere existence of a joint will is not enough. Without explicit contractual language in the will itself, Surrogate’s Court will likely treat the document as two separate—and revocable—wills.
However, if that contractual language is present, the will becomes a rigid legal instrument. We have seen cases where a surviving spouse is sued by stepchildren for attempting to change the plan. This leads to costly litigation that fractures the family—the very outcome the will was meant to prevent.
A Better Instrument for Lasting Stewardship
The goals behind a joint will—providing for the surviving spouse while protecting the inheritance of children from a prior marriage—are valid. Fortunately, there are far better legal instruments for achieving them without an inflexible contract.
In our practice, we often use trusts to accomplish this. A marital trust, for example, can hold assets for the benefit of the surviving spouse during their lifetime. They receive income and can be given access to the principal for needs like health and support. The trust document, however, dictates the ultimate beneficiaries. Upon the survivor’s death, the remaining assets pass to the children as originally intended.
This approach provides security for the surviving spouse while honoring the couple’s long-term wishes. It allows for prudent management by a trustee and builds in flexibility for unforeseen events—all without locking anyone into a decision that cannot be revisited. It is an act of deliberate, intentional planning, not a gamble on the future.
If you and your spouse signed a joint will years ago, or are considering one now, the first step is to understand its true nature. We can review your existing documents to determine if they contain binding language that could unintentionally constrain your family for generations.
