What Is an “I Love You” Will and Is It Right for Me?
An “I love you” will is a common type of last will used by spouses. It’s a reciprocal will where the language is exactly the same in each spouse’s will, except that the names are flipped.
In a typical “I love you” will, each spouse leaves their entire estate to the other, then, if their spouse predeceases them, to their children. If both spouses die at the same time, their estate passes to their children.
This type of will is a simple and straightforward way to help avoid Family Malpractice™ and direct how the family’s estate should be handled after the death of one or both spouses. It’s a great choice for many families but not all. There are some important considerations, including how much you and your spouse trust each other.
Here’s what to know.
An “I Love You” Will is Not the Same as a Joint Will
While both types of wills are most often used by spouses or couples, there are some important differences between the two.
First, a joint will is one single document shared by two people. More importantly, a joint will is very restrictive. If one spouse dies, the surviving spouse is bound by the terms of the will and cannot change them, even after major life events like remarriage. (Some states allow for a joint will to be revoked, but the process can be difficult.)
In contrast, each spouse has their own distinct will with an “I love you” will. This is important, because it means an “I love you” will is much more flexible. A surviving spouse may keep the will as is (which would then leave the estate to the children), amend it, or replace it with a new will entirely.
At our law office, we don’t draw up joint wills and we don’t recommend them for anyone. An “I love you” will is the better choice between the two, providing more flexibility for the future.
However, it’s not right for everyone.
An “I Love You” Will Might Be Right for You If…
This type of will might be right for your family if you and your spouse:
- Have no children or only shared children (i.e., no stepchildren)
- Are on the same page about how your assets should be handled after death
- Trust each other
An “I Love You” Will Might Not Be Right for You If…
This type of will might not be a good choice for your family if you and/or your spouse:
- Have children from a previous relationship (where a “Brady Bunch” will for blended families is a better choice)
- Don’t agree on how assets should be handled after death
- Have large amounts of debt
- Have an addiction or overspending problem
- Are in a situation that could put the assets at risk
- Don’t trust each other
Trust is Key with an “I Love You” Will: Issues to Consider
On this last point, it can be difficult to face the reality that you don’t fully trust your spouse to make good choices regarding your estate after your death. But it’s worth thinking about what could happen.
For example, one client had us write up her will, but she didn’t leave her entire estate to her husband without restrictions. She suspected he might start dating after she died and give away some assets to his new girlfriend – and that’s exactly what he tried to do. Knowing him, she had used her will to protect some assets and keep them in the family. She used a certain type of trust to essentially “handcuff” him, allowing access during his life to some of her assets while preserving the rest for the children.
Another point to consider: An individual has the right to change their “I love you” will while both spouses are still alive. This could lead to an uneven situation where one spouse leaves everything to the surviving spouse in the will, but the other spouse doesn’t. The individual changing their will has an ethical obligation but no legal obligation to inform their spouse of the changes.
Finally, you must also trust that your spouse will not spend or squander the assets and leave nothing for your children, if that’s important to you. If your spouse has issues with addiction, gambling, or overspending, leaving them all your assets could not only be detrimental to your children, but to your spouse as well.
Maybe your spouse doesn’t have an addiction or spending problem but has a lot of debt or suffers from a serious medical condition that’s expensive to treat or is in a profession (like doctor) that’s likely to be sued. These are scenarios where the estate’s assets could be at risk of being spent with nothing remaining to leave to the children.
Ask yourself:
How would you feel if your spouse remarried or dated after your death and gave your assets away to a new partner or child(ren)?
How would you feel if you found out your spouse had changed their will without telling you, and your wills were no longer reciprocal?
How would you feel if your spouse spent everything on addiction, shopping, or debts, leaving nothing for your children?
There is no right or wrong answer to any of these questions. But you and your spouse should seriously consider them before deciding to move forward with an “I love you” will.
Do You Have the Right Will for Your Family?
You can see how the apparently straightforward “I love you” will can quickly become complex. This is where it’s helpful to work with an experienced estate planning attorney who can bring up potential issues and scenarios you might have never thought of. An “I love you” will is just one type of will, and maybe a different kind of will is a better choice for your family. An experienced estate planning attorney can help you figure it out.
Whether you’re getting a will for the first time, updating an old one, or simply want to review an existing one to ensure it still aligns with your priorities, we can help. Gem and his team at the Gem McDowell Law Group help individuals and families across South Carolina create wills and comprehensive estate plans that reflect each family’s unique circumstances and wishes while avoiding Family Malpractice. Schedule your appointment or free consultation at the Myrtle Beach or Mount Pleasant, SC office by calling 843-284-1021 today.
The Omitted Spouse: When the Spouse is Left Out of the Will
What happens if you leave your spouse out of your will? Or your spouse leaves you out of his or her will?
This happens more often than you think. Many couples get married after one or both partners already executed a last will, meaning the new spouse has been unintentionally left out.
But that doesn’t mean the surviving spouse receives nothing. The law provides for the omitted spouse so that he or she is not unintentionally disinherited.
What the Omitted Spouse is Entitled To
Under South Carolina Code section 62-2-301, an omitted spouse is entitled to the same share of the testator’s estate that would have been received had the testator died without a will.
South Carolina intestacy laws determine the share of inheritance in such cases. If the testator dies with no children, the spouse inherits everything (i.e., all the assets subject to probate). If the testator dies with a spouse and children, the surviving spouse is entitled to 50% of the estate. The remaining 50% is divided according to the terms of the will.
The omitted spouse does not automatically receive the assets but must claim his or her share within a certain time frame.
When the Omitted Spouse Provision Does Not Apply – Spousal Elective Share
The purpose of the omitted spouse is to provide for a spouse left out of the will unintentionally.
But what if the spouse was left out of the will intentionally?
Under the same law cited above, if it appears that the omission was intentional or if the testator provided for the spouse through transfers outside of the will, then the omitted spouse provision does not apply.
The surviving spouse may still make a claim for elective share, however. A surviving spouse is entitled to one third of the testator’s probate estate in South Carolina even if the testator intentionally left the spouse out of the will. That’s because the only way to legally disinherit a spouse in South Carolina is to have both partners knowingly sign a waiver of elective share. (Read more about disinheriting a spouse and spousal elective share here on our blog.)
The Solution: An Intentional and Current Estate Plan
Laws regarding omitted spouses and elective share have helped many people who would otherwise have been disinherited. But having a purposeful, up-to-date will and estate plan is better than relying on the law to carry out your wishes.
For help with last wills, trusts, powers of attorney, and other estate planning documents, call estate planning attorney at the Gem McDowell Law Group. Gem and his team help individuals and families in South Carolina create estate plans that take into account unique circumstances, carry out personal wishes, and give peace of mind.
Whether you’ve never had an estate plan drawn up before or your existing plan is in need of a review, Gem and his team can help. Call today to schedule a free consultation virtually or at the Myrtle Beach or Mt. Pleasant, SC, at 843-284-1021.