Many married couples plan to write their wills and go with simple “I Love You Wills.” This simple last will plan can work well for many couples, but the practical impact isn’t very loving for others.
Kiplinger’s recent article, “I Love You, But Your ‘I Love You Will’ Needs to Go,” says that these types of last wills generally refer to reciprocal last wills created by spouses. In their last wills, each spouse leaves their entire estate to the other spouse outright, and then, in most cases, upon the surviving spouse’s death, the remaining assets are slated to pass to their mutual children.
These types of last wills are frequently created by those creating last wills for the first time who have simple estates and are anxious to have something in place before a significant life event (such as marriage, a first child, or taking an extended family vacation). Others who create I Love You Wills may do so because they find the process of last will creation emotionally draining or overly depressing. They want easy and simple instead of something more thoughtful that may take the help of an experienced estate planning attorney.
Here are a few challenges to consider when deciding if an I Love You Will is right for you.
Control Upon the Survivor’s Death. A major issue with an I Love You Will is that the surviving spouse can change their will after the first spouse’s death. As a result, they can easily eliminate or reduce gifts to children of the marriage in favor of a new spouse, new or stepchildren, or other beneficiaries who aren’t part of the original couple’s plan design. But with a trust for the surviving spouse upon the first spouse’s death, the originally intended beneficiaries can be “locked in.” An appointed independent trustee or co-trustee can serve alongside the surviving spouse and assess distribution decisions. Plus, it makes it harder for assets acquired during the marriage to benefit new families or for the surviving spouse to disinherit mutual children.
No Option for a ‘Primary’ Charitable Bequest. Most spouses intend to benefit their surviving spouse with most of their assets. Still, many people want to also leave something directly on their passing to a church or charity. An I Love You Will doesn’t afford this opportunity to immediately create a lasting legacy and sustain an important cause for generations.
No Incapacity Protection. Think about if—at the time of your death—your surviving spouse was incapacitated and couldn’t manage their financial affairs, including any inheritance. Most folks would prefer to have their spouse’s inheritance managed by a trusted family member they named, not someone appointed by a court. This arrangement that leaves assets outright to the surviving spouse is less protective when a trust for the surviving spouse can help ensure that assets are managed sensibly for their benefit if they cannot manage their finances independently.
Reference: Kiplinger (May 2, 2023) “I Love You, But Your ‘I Love You Will’ Needs to Go”