Wills for Couples: Why to Think About It Early

In short: without a will, the law decides who inherits, not you two. Whether a spouse is protected, and whether an unmarried partner inherits anything at all, differs from place to place. In some places an unmarried partner gets nothing without a will. Even with a will, some places reserve part of the estate for children or parents. Writing a will isn't final: you can change it. For your own situation, talk to a local lawyer.

What happens without a will

The law of the place where you live sets a default list of heirs, and the order depends on where you live. Whether a spouse is included, and how much they receive, differs. A spouse you're legally separated from may be treated differently from one you're still living with.

An unmarried partner often isn't on that default list. In some places, if one of you dies without a will, the other has no right to inherit at all, and only some places treat a long-term partner like a spouse. That's why it's worth finding out what applies to you, and writing a will if you want your partner provided for.

Even with a will: protected shares

In some places you can't leave everything to whoever you want if you have certain close relatives, such as children or parents, because the law reserves part of the estate for them. Other places give you much more freedom. Find out which kind of place you live in, and whether the rules for a spouse are different.

An example with Blue and Orange

This is an illustration with made-up rules, to show how a protected share works. It is not a statement of what the law says where you live.

Suppose Orange's (the penguin's) estate, after debts, is $90,000, and Orange wants to leave all of it to Blue (the whale). Imagine a place where the law works like this:

• No children, parents still living: the parents' protected share is half, $45,000. Orange can leave Blue $45,000.
• With a child together: the child's protected share is two-thirds, $60,000. Blue can receive at most $30,000 as the freely disposable part.

Check: 90,000 ÷ 2 = 45,000, and 90,000 × 2/3 = 60,000, which leaves 30,000.

Also, what counts as the estate depends on how you own things. If you own things jointly or hold property under marriage rules, work out what is really Orange's before dividing, because only the deceased partner's share is inherited. Real rules differ, and taxes aren't included here.

What to know about the document

• One each. Usually each partner makes their own will. In some places a joint will isn't allowed or works differently, so ask a local lawyer.
• You can change it. A will can generally be revised, and a newer one usually replaces the older one, but check how to do it properly so the old one is truly revoked.
• After a breakup, redo it. Don't assume the old one cancels itself; make a new one.
• Formal requirements. Wills usually have to follow formal rules, such as signatures, witnesses and sometimes a notary, to be valid. A handwritten or informal version may not be valid, or may need extra steps. A lawyer or a local official can tell you what applies.
• Tell the right person. Make sure whoever will need it knows where the will is kept.
• A home you own together. If there's no will, or the heirs are other people, the surviving partner may end up sharing the home with them, and co-owners may be able to force a sale. How this works depends on where you live.
• Debts. Accepting an inheritance can mean taking on its debts. In some places you can limit your liability to what you inherit. Ask before you accept.
• Taxes. Inheritance and estate taxes depend on where you live; ask a tax professional.

Questions to ask each other

1. What would happen to our home and our accounts if one of us were gone?
2. Are there children, ours or from another relationship, or parents the law reserves a share for?
3. Do we want the other to be able to keep living in the home?
4. Are there debts or a mortgage the other would have to take on?
5. When will we review it? After every change: wedding, a child, a purchase, a separation.

How to take the first step

1. Each of you make a list of what you own and owe, and of who depends on you.
2. Write down what you'd want for the other and what questions you have.
3. Bring the list and the deed to your home to a local lawyer or estate-planning professional.

General information, not financial, tax or legal advice. For your specific situation, consult a professional.