Estate Planning's I Love You Will Shouldn't Get All the Love

A couple forms the shape of a heart with their hands with the sun at the beach as the backdrop. — (Image credit: Getty Images)

Are you and your spouse planning to write your wills this season? Congrats! Will-writing is one of the most loving things you can do for each other and for all the people and causes that matter most to your life.

I Wish I May, I Wish I Might: Estate Planning’s Gentle Nudge

But if you’re thinking about implementing simple “I Love You Wills,” read on. While this simple will plan design can work well for many couples, for others, the practical impact is not very loving.

What Is an I Love You Will?

I Love You Wills generally refer to reciprocal last wills and testament created by spouses. In their wills, each spouse leaves their entire estate to the other spouse outright, and then, in most cases, upon the death of the surviving spouse, the remaining assets are slated to pass to their mutual children.

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These types of wills are often created by individuals making their wills for the first time who have simple estates and are anxious to have something in place before an important life event (like getting married, having a first child or taking a long family vacation). Others who create I Love You Wills may do so because they find the process of will creation emotionally draining or overly depressing (who wants to talk about death?) and seek out the simplest plan design rather than something more thoughtful that may take multiple rounds of drafting with an attorney.

I Love You Wills are popular because they are a simple and relatively inexpensive estate plan that, when circumstances go as planned, can effectively facilitate the plan of a couple with straightforward wishes and an uncomplicated estate — including the naming of a guardian for their minor children and pets and the distribution of their assets to their loved ones — thereby avoiding intestacy (that is, dying without a will).

Below are a few challenges that you may want to think about when considering if an I Love You Will is right for you.

Challenge #1: Control Upon the Survivor’s Death

One of the most often cited concerns about an I Love You Will plan is that the surviving spouse can change their will after the first spouse’s death (as long as they have capacity). More particularly, 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 are not part of the original couple’s plan design.

Building a trust for the surviving spouse upon the first spouse’s death can help “lock in” the originally intended beneficiaries. By appointing an independent trustee or co-trustee to serve alongside the surviving spouse and assess distribution decisions, it also makes it more difficult for assets acquired during the marriage to benefit new families or for the surviving spouse to disinherit mutual children.

Challenge #2: Lost Opportunity for a ‘Primary’ Charitable Bequest

Most spouses do intend to benefit their surviving spouse with the majority of their assets. However, philanthropically minded people often feel strongly about leaving something directly on their passing to a cause that matters most (like, “Upon my death, I give $100 to [Favorite Charity]”), rather than waiting until both spouses have passed (like, “Upon my death, if my spouse has predeceased me, I give $100 to [Favorite Charity]”) to start making a difference.

Leaving an Inheritance? Is It Better to Give to Kids Now or Later?

A plan design that simply states that all assets pass on the death of the first spouse to the survivor — including an I Love You Will plan — does not afford this opportunity to immediately create a lasting legacy and sustain an important cause for generations to come.

Challenge #3: No Incapacity Protection

Imagine if at the time of your passing, your surviving spouse was incapacitated and couldn’t manage their financial affairs — including any inheritance. Most people would prefer to have their spouse’s inheritance managed by a trusted family member or friend nominated by them as opposed to being left to the discretion of a court (remember the court can select someone to oversee the funds whom you would not have picked).

An arrangement that leaves assets outright to the surviving spouse is less protective in such an event. On the other hand, establishing a trust for the surviving spouse under the management of a trusted nominee you select can help ensure that assets are managed sensibly for their benefit if they are or become unable to independently manage their finances.

Takeaway

Two-thirds of American adults report not having a last will and testament. Estate planning professionals agree that in most cases having a simple will — including an I Love You Will — is much better than having no will at all.

In addition to providing for the distribution of assets on death, spouses use their I Love You Wills to name guardians for minor children and pets, will executors (and sometimes digital executors to handle a will-maker’s digital accounts and assets) to settle their estates and account for the payment of estate expenses, including taxes. Also, simple I Love You Wills can perform admirably when everything goes as expected.

However, in certain cases, implementing an I Love You Will can have unintended consequences or represent missed opportunities to start supporting a favorite cause at the first spouse’s death or protect a loved one — including in the event of incapacity.

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So if you and your spouse are getting ready to write your wills this season — whether it’s an I Love You Will or a plan design with a bit more complexity — be sure to be thoughtful and intentional, and to select the plan that is going to love you back.

Disclaimer

This article was written by and presents the views of our contributing adviser, not the Kiplinger editorial staff. You can check adviser records with the SEC or with FINRA.

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Allison L. Lee is the Attorney-at-Law, Director Trusts & Estate Content for FreeWill, a mission-based public benefit corporation that partners with nonprofits to provide a simple, intuitive and efficient online self-help platform to create wills and other estate planning documents free of cost. Through its work democratizing access to these tools, FreeWill has helped raise billions for charity. Prior to joining FreeWill, Allison spent more than a decade in private practice.