New Mexico Joint Will Lawyer

A joint will is a special type of legal instrument created by married spouses with the intention of handling the disposal (distribution) of both their estates at the same time.

Joint wills have been used for centuries — with varying results; many times, the courts can struggle with interpreting how to carry out the will, especially when circumstances arise that the will creators (called testators) did not anticipate. Other times, the wills are honored by the court, but the enactment of the will creates struggles for the surviving spouse or other heirs.

Contact our offices to speak to a New Mexico joint will lawyer about whether this unique type of will could be beneficial towards your goals. We can also help you analyze your options for other types of wills and estate planning options, giving you the opportunity to select the one that best fits your personalized criteria.

Schedule a no-obligation consultation and estate plan review with New Mexico Financial & Family Law to discuss joint wills and other opportunities. Call 505-503-1637 or contact us online to book your appointment today.

What to Consider When Meeting With a New Mexico Joint Will Attorney

Creating a will is an essential task, but it can also seem overwhelming. You are forced to decide how to handle all of your life’s possessions — while also trying to anticipate what the future may hold for you and your loved ones.

Understanding that it can be an emotional undertaking, your joint will attorney at New Mexico Financial & Family Law works closely with you to understand your goals and describe all your available options.

Our thorough approach enables you to take each step slowly while keeping the overall big picture in mind. By the end of the process, you and your spouse can create a one-of-a-kind will that leaves you feeling confident about the legacy you leave behind.

Before you meet with your New Mexico joint will attorney, take a moment to consider how you might respond to all of the following questions:

• What property — including personal property and real property — makes up your estate? Of this property, what would you consider to be more of your spouse’s property than your own?
• Do you and your spouse intend to move any time soon, purchase a second home, or make any other large investment?
• Are you and your spouse on a fairly set career path, or do you expect your life situation to be dynamic (and harder to predict) in the coming years?
• Who do you want to inherit your property? Are you on consistently good terms with all of these people?
• Do you intend to gift specific items or property of significant value to your beneficiaries? Or would you rather have these items liquidated to make your estate easier to distribute?
• Do you have a guardian in mind for any of your children who are still minors?
• What digital accounts do you have? Do you want them to be closed down or maintained after your death?
• Do you have concerns about exceeding the estate or gift tax limit ($13.61 million as of 2024)?
• Are you concerned about the will being irrevocable after one spouse’s death?

Your New Mexico joint will lawyer can go over all of these questions with you to help chart a path forward for creating your will. We can also help you customize your overall estate plan with details of your will in mind.

How Does a Joint Will Work?

A joint will instrument is a single document that, in theory, combines the last will and testament of each spouse into a single will that can be entered into probate twice — once after the first spouse dies and then again upon the death of the second spouse.

While joint wills can take on many forms, most contain the following clauses:

• The document is intended to act as a last will and testament demonstrating each spouse’s wishes for the disposition (distribution) of their estate.
• If one spouse dies before the other, then the entirety of the estate passes to the surviving spouse.
• If both spouses die simultaneously or within a short window of one another, then the entire estate should be divided evenly amongst their children.
• Upon the death of the first spouse, the will becomes irrevocable, meaning it cannot be altered.
• When the surviving spouse dies, the remaining property in the estate shall be divided evenly among the surviving children.

In short, the intention of the will is for a surviving spouse to inherit everything first, and when they die, the property finally gets distributed to their children (or intended beneficiaries).

The Irrevocability of a Joint Will

One key feature unique to joint wills is that they (in most cases) deprive a surviving spouse of their ability to make their own will once the first spouse dies.

With most other types of wills, the testator has the power to change the will up until they die or lose mental capacity.

Note, however, that New Mexico law does not automatically assume that the joint will becomes irrevocable after the first spouse dies (see NM Stat § 45-2-514). Instead, the joint will has to include a clause expressly making it irrevocable upon the first spouse’s death.

Joint Wills and Specific Bequests or Devises

A bequest is a promise to transfer personal property, such as a family heirloom, while a devise transfers real property, such as a family home.

It is highly inadvisable, in most situations, to promise specific belongings or real estate in a joint will, as opposed to generally recommending that the value of the estate is split among beneficiaries.

Why? Because after the first spouse dies, any property promised to another heir after the surviving spouse’s death cannot be altered or sold.

Doing so violates the right of the final beneficiary to inherit that property because the surviving spouse failed to honor the wishes of the decedent.

Here’s an example: a couple owns a vacation home in Santa Fe. They write a joint will promising that their oldest child, named Gregory, inherits the house after they both die.

The couple makes sure to include an irrevocability clause and specify their intentions in clear terms.

When one spouse dies, they leave the vacation home to the surviving spouse. That spouse now has no legal right to sell, transfer, or even significantly alter the home in any way for the remainder of their life.

Even if they fall on hard times, such as encountering a need to pay for medical bills, then they still aren’t able to sell the home.

Making matters worse, the property remains in their possession for the rest of their life. While that doesn’t sound like a bad thing, it can become a problem if they want to qualify for Medicaid or create a special needs trust for a dependent later down the road.

The home cannot be transferred into a trust, meaning it is counted as part of their assets when determining if they meet needs-based criteria for a program with low-income requirements.

As you can see, a joint will effectively ties the hands of the surviving spouse in ways that can become complicated after the first spouse dies. For this reason, if you are considering a joint will, then avoid promising specific property in the manner described in the example above and instead, consider listing the estate as a portion of the whole (e.g., “We leave 40% of the value of our estate to our son, Gregory”) and including a residuary clause that promises whatever is left in the estate to other beneficiaries.

Separate Property in a Joint Will

New Mexico is a community property state, but couples are allowed to retain separate property in specific instances. Examples include property that was bequeathed specifically to them in a will and property related to business interests that were kept intentionally separate from household finances.

Any property obtained by the surviving spouse after the first spouse’s death could be considered separate property, as well, as long as both spouses sign a written agreement documenting the decision.

However, because a joint will often promises “the entirety of our estate” to beneficiaries, then surviving children may feel entitled to all separate property owned by the surviving spouse.

This situation can create complications for surviving spouses whose relationship with their older children can change as they age. Returning to the example above, if a joint will promises 100% of real estate to the couple’s son Gregory, then any new real estate purchased by the surviving spouse may be presumed to automatically become Gregory’s property after the purchaser dies.

While that doesn’t sound inherently bad, consider what would happen if the surviving spouse remarried and became estranged from Gregory. Now, there are significant legal questions as to whether the remarried spouse is able to leave any property to their new spouse if they die first.

There are protections established by New Mexico law that can prevent this situation (which we’ll discuss in the next section below), but keep these types of scenarios in mind when referring to a New Mexico joint will lawyer.

Joint Wills Do Not Automatically Establish a “Contract to Make a Will”

New Mexico law does provide one bit of flexibility for joint wills when it comes to property confusion: they do not establish a “contract to make a will or devise” just by promising certain property or general portions of an estate to a beneficiary under certain conditions.

Put in simpler terms: just because a joint will promises a child (or another beneficiary) something if both spouses die, it does not mean that the child is promised that asset in all circumstances.

The relevant New Mexico law (NM Stat § 45-2-514) states that such a contract is only established if one of the following is true:

• The will instrument (the document itself) specifically lays out a contractual arrangement
• The will specifically references another document that creates a valid contract
• The testators specifically sign a statement saying they agree that their joint will creates a contract

These laws were tested in the 2001 New Mexico Supreme Court case In re Naranjo v. Armijo (2001-NMSC-027, 130 N.M. 714, 31 P.3d 372.). In that case, a joint will stipulated that a couple’s children would inherit their entire estate only if they died simultaneously.

After the death of the first spouse, the beneficiaries sued the estate, saying that the will intended for the property to go to them no matter what, so they were entitled to some portion of the decedent’s estate now. The district court initially agreed, but the case was overturned by the Court of Appeals.  However, the Supreme Court reversed the Court of Appeals and reinstated the trial court decision.

The Supreme Court specifically cited the aforementioned law (NM Stat § 45-2-514), ruling that the will was not ambiguous, and the surviving spouse owned the property “absolutely” as stated in the will itself. A cautionary note about making sure the intention is clear: The surviving spouse was held up for four years as this case wound its way up the ladder of appeals.

Alternatives to Discuss With a New Mexico Joint Will Lawyer

The most common alternatives for a joint will in New Mexico include:

• Mutual will — Two separate wills bound by a mutually signed codicil, which effectively creates the same legal arrangement as a joint will, requiring both spouses to agree to any changes in either will.
• Mirror will — Two nearly identical wills executed by each spouse. These have the added flexibility of allowing either spouse to change the terms of the will at any time.
• Joint trust — Also called a couple’s trust or AB trust, this arrangement deposits most of the couple’s belongings into a single trust. When one spouse dies, half of their joint property and all of their separate property goes into a separate trust (called a bypass trust or credit shelter trust), and the surviving spouse’s property goes into a survivor’s trust. This arrangement allows the surviving spouse to benefit from the decedent’s property (such as drawing income from the bypass trust or living in a home technically owned by it), but it prevents the surviving spouse from selling or getting rid of the property promised to ultimately go to children (or other beneficiaries).

Uncover Your Best Options With an Experienced New Mexico Joint Will Law Firm

The laws surrounding estates and inheritances in New Mexico can get complicated pretty fast, especially when joint wills are involved.

New Mexico Financial & Family Law is here to provide you with answers to your questions and guide you toward the best path forward for your family. Our New Mexico joint trust attorneys can review all of your options for creating the most convenient and optimal estate plans possible.

Get started planning for your future and your legacy when you call 505-503-1637 or contact us online to schedule a no-obligation consultation and estate plan review.