Wills in North Carolina: Why Separate Wills Protect Married Couples
Photo by Roxanne Andrea Dychengco on Unsplash
Search online and you’ll quickly find ads for a “North Carolina Joint Will for Married Couple.” Fill in a few blanks, sign it, and the process is complete—or so the ad says. But is it?
The American Association of Retired Persons (AARP) warns against ads like these: “Joint wills are a terrible idea.”
Some might argue that joint wills don’t sound like a terrible idea. They’re simply wills that two or more people create together to dispose of property after their deaths.
For married couples in more traditional relationships raising shared children, joint wills may seem like a simpler end-of-life plan. After all, when one spouse dies, the surviving spouse inherits everything. Then, what remains after the second spouse passes goes to the kids.
But life has a way of twisting and turning, throwing unforeseen challenges our way. Let’s take a look at why that’s important for estate planning. First, we’ll explore how wills work in North Carolina and then consider the problems with joint wills—and why married couples should still have separate wills in North Carolina.
What Wills in North Carolina Do and What Makes Them Valid
You may already be familiar with what a will is. Also called a Last Will and Testament, it’s one of the most important legal documents you’ll ever create.
It dictates how your assets will be distributed after you pass away. Your will also names an executor to manage the asset distribution and your other affairs. When minor children are in the picture, it designates guardians for those children.
Wills in North Carolina must be in writing and include your signature. North Carolina law also requires two witnesses to the signing.
Are Joint Wills Practical for Modern Families?
Unlike individual wills, joint wills express the wishes of more than one person. Ideally, the two have a united vision for the future of their estate, but things can become complicated quickly for a number of reasons:
Changing family structures in the US: According to Pew Research Center, in 1970, the percentage of 25- to 49-year-olds in the US who were married with kids was 67%. In 2021, that number had dropped to nearly half—only 37% of that same age group were married with kids.Other family formations have grown in the years since including:
Cohabiting individuals who share children
Unpartnered individuals with dependents
Married couples without children
Other family members all living together
The group of people for whom joint wills may have once worked well has grown smaller over time.
Life changes that affect estate plans: When couples walk the aisle and pledge “to have and hold from this day forward,” most truly believe they’ll be married forever. But when one spouse in a joint will leaves the marriage—by choice or by death—the surviving spouse may have limited options for future estate planning.
The existing joint will can take precedence in many decisions. If the surviving spouse wants to sell the house and move closer to the kids, for example, that may not be possible. They could be locked into the terms of the joint will no matter how their circumstances change.
Complications if a surviving spouse remarries: Another circumstance that can complicate matters is the remarriage of a surviving spouse. The joint will may no longer represent that spouse’s current life circumstances. Yet the individual may have little or no recourse for changing it to reflect their new life.
The key limitation of joint wills is that they are inflexible and often irrevocable. What sounds simple can become complicated when life changes and the will no longer fits the needs of the spouses involved.
Why Do Married Couples Need Separate Wills in North Carolina?
That’s why married couples need separate wills. Even in traditional families, circumstances change. Separate wills allow couples to coordinate their estate planning while still maintaining flexibility for the future. They also provide additional advantages:
Clear Legal Authority
Separate wills reflect the wishes of each spouse individually, giving clear legal direction for how they want their assets and affairs handled following their passing. The clarity in direction can eliminate confusion and make the executor’s job easier.
Flexibility in Changing Circumstances
Life can change quickly, and separate wills offer the flexibility to change with it. When a new child is born, a new property is purchased, or another life change impacts the couple, each will can easily be updated to reflect those changes.
Simpler Planning for All Types of Families
Every family is different. Some couples are raising children together, while others are part of blended families and have children from previous relationships. Separate wills allow each spouse to clearly provide for their surviving spouse while also protecting the interests of children, stepchildren, and other loved ones.
How Do Separate Wills Allow More Estate Planning Options?
Creating separate wills makes it easier to expand or adjust your estate plan over time. As families’ needs evolve, couples may choose to incorporate additional planning tools. Trusts for children, provisions for a family member with special needs, or charitable gifts are good examples.
Having individual wills allows each spouse to make these decisions in a way that aligns with their own priorities while still coordinating with their overall family plan.
So, while married couples often plan their estates together, we recommend having separate wills to provide flexibility for changing circumstances. A well-prepared estate plan should reflect your current life, your family relationships, and the goals you have for the future.
If you currently have a joint will, and your spouse is still living, it may be time to review your estate plan and consider creating separate wills. Reach out to Hillsborough Wills & Trusts, and we can discuss your individual situation, talk about what it takes for married couples to create separate wills in North Carolina, and help you design a plan that makes the most sense for you and your loved ones.
Estate planning doesn’t have to be complicated. With the right guidance, you can create a plan that provides peace of mind for your family. Call us today at 919-245-8440.