The Joint Will: An Unsuitable Estate Planning Tool in Texas

Why You Should Not Use a Joint Will in Texas

Understanding the complexities of estate planning can feel daunting, particularly when it involves loved ones. A joint will, a document often utilized by spouses to establish mutual asset distribution, might initially appear as an attractive solution. However, within the unique legal landscape of Texas, joint wills are generally discouraged.

Understanding Joint Wills

Joint wills allow two individuals, typically married partners, to decide on a common plan for property disposal upon their passing. It's customary for the joint will to dictate that the surviving spouse inherits everything, and once the surviving spouse dies, the remaining estate is distributed to predetermined beneficiaries. Despite the joint will's perceived convenience, legal experts warn against its use due to its inherent legal complexities.

Challenges with Joint Wills

The primary issue with joint wills lies in its binding effect on the surviving spouse. In most cases, once the first spouse passes away, the surviving spouse is strictly held to the will's original terms. The potential difficulties are numerous: the surviving spouse may wish to remarry, their healthcare expenses could skyrocket, or other unexpected life changes could occur that demand flexibility in estate management.

Another disadvantage of joint wills is their inherent lack of flexibility. Since joint wills cannot be altered or revoked without both spouses' consent, the surviving spouse can be left in a precarious position if a major life change occurs.

Joint wills can give rise to legal disputes and confusion, particularly following the death of the first spouse. This confusion often comes into play during the probate process, which is the legal process of verifying a will and distributing assets according to its terms.

Ambiguities in wording and the potential for differing succession laws in various states can complicate the interpretation of joint wills. Additionally, a surviving spouse is usually locked into the provisions of a joint will, even after the death of the first spouse. While this is not always the case, as noted in Nesbett v. Nesbett, 422 S.W.2d 746, whether or not the terms of a joint will are irrevocable by the surviving spouse usually depend heavily on the specific language used in the will, and whether that language suggests a contractual agreement. It is important to note that this court did hold that the mere creation of a joint will does not automatically prove that it was made pursuant to a contract and therefore irrevocable when the first spouse dies. Courts will have to interpret the will's terms and the circumstances, which can be complex and time-consuming. Disputes among beneficiaries can lead to lengthy legal battles, which can significantly diminish the value of the estate and delay the distribution of assets.

Alternatives to a Joint Will

Thankfully, Texas offers alternative, more flexible, and efficient estate planning tools. The most recommended alternative is for each spouse to create a separate will.

Separate wills allow each spouse to have a tailored estate plan that can be adjusted as needed without requiring the consent of the other spouse. The separate wills provide greater flexibility to change the terms of the will if there are changes in relationships, financial situations, or other personal circumstances.

For couples who want to create a unified estate plan similar to a joint will, mirroring wills provide an effective alternative. Mirroring wills are essentially identical wills where each spouse leaves their estate to the other. They provide the simplicity of a joint will, without tying the hands of the surviving spouse.

Unlike joint wills, mirroring wills allow the surviving spouse to alter their will as their circumstances change, offering more flexibility and control over their estate. If, for example, the surviving spouse later needs to sell a property or adjust their estate plan due to increased care expenses, they can easily do so with a mirroring will.

Texas also allows spouses to sign Community Property Survivorship Agreements. This tool enables community property to automatically transfer to the surviving spouse without going through probate, streamlining the process and providing another layer of flexibility.


While joint wills might appear to be a convenient option for couples, they tend to cause more legal complications than they solve. By opting for separate wills – or even mirroring wills – spouses can achieve similar outcomes to a joint will, but with much more flexibility and control over their respective estates.

Always consult with a qualified estate planning attorney before making any decisions about joint wills or other estate planning tools. An attorney can help navigate the complexities of estate planning law in Texas and ensure the estate plan best meets your needs and those of your loved ones.

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