San Antonio Express-News
April 12, 2005

Can a Spouse Change the Other's Will?

copyright 2005, Paul Premack

Only you can legally change the contents of your Will. No one else is authorized to make changes to your Will, even your spouse, even if your spouse is legally appointed as Agent under your Durable Power of Attorney.

However, there are two possible ways that you can get the control you both want. First, each of you could make a Will that has a primary plan and a contingency plan. The primary plan would say that you name your surviving spouse as heir, to get all assets when the first dies.

When the survivor becomes owner of all the assets, the survivor has legal authority to change his/her own Will and thus controls who inherits all the assets upon his/her death. This has the same effect as modifying the inheritance designation for both of you. But since control is in the hands of the surviving spouse, any changes could even contradict the deceased spouse’s plans.

Second, you could make a joint Living Trust agreement, which is a contract that contains the inheritance designation for both of you. You should both still have Wills, but they are relegated to leaving all your estate to the Trustee of the Trust, who is required to fulfill the instructions you leave in the Trust. Then, when one spouse dies the survivor retains authority to modify the Trust, including modifications to the inheritance designations. You still cannot change each other’s Wills, but the assets will pass by virtue of the Trust leaving the Wills with a less significant impact.

Of course, if you should both die together in a common event, then whatever your Will or Trust says on the date of your deaths is irrevocable. The pattern is locked at that time and no further changes can be made.

Even if you select your heirs carefully, any heir can decline to accept an inheritance by filing a legal disclaimer. Two weeks ago I wrote that an Executor must follow the terms of the Will whether the heirs like it or not, and that also applies to Trustees. To augment that answer, you should know that while the Executor’s duty is to follow the terms of the Will, an heir can voluntarily renounce within the first 9 months after the date of death by filing a disclaimer.

The Executor still follows the Will or Trust by looking to the contingency plan to identify the replacement heir who gets the benefits the disclaiming party would have gotten. If there is no contingency plan, then state law provides categories of relatives who might qualify for the inheritance. If all eligible relatives disclaim (which happens very rarely) the asset would escheat to the state.