Couples can create a mirror will to express their identical wishes for their estates. In most cases, a mirror will leaves the entirety of the estate to the surviving spouse after the first spouse passes.
The surviving spouse’s will then usually states that the estate shall be distributed equally to all of their children once they, too, pass on.
A mirror will arrangement can be a great idea for some couples, but it may not be the best route for others. Refer to a New Mexico mirror will lawyer to get personalized guidance on how to best use these unique types of wills — or to see if another form of estate planning might better serve your family’s interests.
Schedule a no-obligation consultation and estate plan review with New Mexico mirror will law firm today when you call us at 505-503-1637 or contact us online.
One might think that a will with a simple arrangement — like a mirror will — is going to be easy to create. However, there are many considerations that should go into the creation and execution of a will. It involves more than just deciding who inherits what.
A New Mexico mirror will attorney can help you understand the entirety of your estate plans from an experienced legal perspective. When you meet with your lawyer, they will begin by reviewing your current financial portfolio and your family situation.
They can then listen in detail to any goals you have for your future, especially when it comes to estate planning.
Mirror wills are just one option available for households that want to follow a simple inheritance scheme while keeping most of the estate in the family. On the other hand, a mirror will may not be advisable in certain situations.
Your New Mexico mirror will lawyer can go over all of the important factors to consider. They can then recommend a range of personalized estate planning options, helping you decide on the plan that best fits your goals and your unique situation.
Working with an attorney increases the chances that your will is going to be easy to follow and carry out when it comes time to handle your spouse’s estate or your own. An experienced attorney can also ensure that your will is properly executed and that any provisions it contains can be enforced under New Mexico state law.
Read on to learn more about the benefits, drawbacks, and alternatives for a mirror will estate plan, then reach out to our New Mexico mirror will law firm to create a one-of-a-kind plan that leaves behind a legacy you can be proud of.
A mirror will actually refers to two wills that are nearly identical in wording. They both reflect the identical wishes of the will’s creators (called testators).
Also called a reciprocal will, mirror wills are usually more popular in the majority of states without community property laws.
Typically, a mirror will contains just a few provisions:
A mirror will can also include gifts of specific property to beneficiaries at the time of the first spouse’s death. However, both wills should acknowledge this gift so that there aren’t any conflicting bequests in the mirror wills.
Technically, though, a mirror will can contain any provision it wants. Unlike other types of wills (which we will cover in sections below), there is no legally binding agreement to even maintain the near-identical nature of the mirror wills.
Instead, each spouse has the opportunity to change their will at any time. This power adds flexibility to mirror wills compared to other options, but it can also leave a lot up in the air, especially after the first spouse dies.
Mirror wills only have to abide by the rules for all other wills in New Mexico (per NM Stat § 45-2-502), which are as follows:
In addition, all parties involved must be 18 years old or older, and they must have the mental capacity to understand that a will is being created.
One of the biggest strengths of mirror wills is also a weakness: they can be changed by either spouse without having to notify the other spouse of the changes.
If the wills contradict one another, the will of the first spouse who passes is entered into probate and carried out according to the instructions. At this point, the surviving spouse may discover that alterations have been made that effectively nullify parts of their own will.
For example, suppose one spouse owned a collection of baseballs signed by famous players prior to their marriage. Both spouses agreed in their mirror wills to leave the collection to all of their children, divided equally among them.
However, in this hypothetical scenario, the spouse who died first secretly changed their will so that one child inherits all of the baseballs instead. There’s now nothing the surviving spouse can do, considering it was their other spouse’s legal right to leave their separate property to whomever they wished.
In any event, surviving spouses can and should revise their will any time they experience a major life event. That qualifier certainly applies to the death of their spouse, so the entire purpose of mirror wills becomes murky once the first spouse dies.
Consider that once the surviving spouse inherits property according to the mirror will, they now have no legal obligation to honor the original language of the will. They can now change their will or handle the property however they want.
These situations are especially likely to arise when the surviving spouse has children from a previous marriage — or a new marriage if they get married after the death of their original spouse.
Another factor that makes mirror wills more complicated than they seem is that New Mexico is a community property state. Once a couple is married, nearly all property they acquire becomes jointly owned.
The only exceptions to community property, per New Mexico law (NM Stat § 40-3-8) include property that is:
Any property that does not fall into these categories passes automatically to the surviving spouse, NMSA § 45-2-807, if there is no will. However, through a will, a married testator can bequeath his or her half interest in community property, although most spouses do not.
Returning to the baseball example, if the couple acquired four additional signed baseballs, after marriage, then the first spouse could only legally have two of the ones acquired during the marriage.
Mirror wills are similar to the other types of estate plans in that their goal is to ensure that a spouse is fully supported before children (or other mutually agreed-upon beneficiaries) inherit the entire estate after both spouses are deceased.
Other estate plan devices that are similar to a mirror will include a:
A joint will is a single will instrument that reflects the wishes of both spouses. Both spouses must sign the document, according to New Mexico’s rules, for proper execution of a will.
Importantly, a joint will typically have a clause stating that it cannot be modified without both spouses’ consent. When one spouse dies, that clause means that the will can no longer be altered in any way.
Mutual wills are similar to a joint will, except there are two separate copies joined by a codicil that states both spouses must consent to any changes. The codicil is then signed, witnessed, and executed in the same manner as the wills.
The rule stating that a joint or mutual will cannot be changed often creates a bad situation for the surviving spouse.
A notable example is a joint will that promises that the family home will go to the eldest child of the couple’s marriage. Because the property has been promised to someone else and the surviving spouse is unable to change their own will after the other spouse dies, they are now unable to do anything but keep the house for the remainder of their life.
If the surviving spouse falls on hard times, they are legally unable to sell the home, in most cases. They may also be unable to make major modifications to the home, such as creating and selling a sub-parcel of the land, since doing so might interfere with the oldest child’s right to inherit the property.
Similarly, if a surviving spouse wants to disinherit their eldest child, for whatever reason, they are likely unable to do so.
Mirror wills create fewer problems since they can always be revised, including after the death of the first spouse. However, they fail to solve the problem of guaranteeing that specific property goes to children (or other heirs) once the first spouse dies.
A joint trust is formed as a living trust by both spouses during their lifetime. All (or most) of their community property goes into this trust.
They can also retain separate property in a sub-trust.
When the first spouse dies, a new trust is often created and funded with their separate property, along with half (or whatever preset portion) of their community property. The surviving spouse’s remaining portion of the joint trust goes into their own trust, which is sometimes called a “survivor’s trust.”
The surviving spouse can retain the right to use the property in the deceased spouse’s trust, such as continuing to live in the family home. They may also have the ability to withdraw from the principal assets used to fund the trust as needed for qualified uses like home maintenance or medical emergencies.
In some cases, the property held in the deceased spouse’s trust (also called a “bypass” or “credit shelter” trust) can generate income that goes to the surviving spouse.
Using this arrangement, the surviving spouse has a legal right to benefit from the bypass trust, which allows the property to qualify for the unlimited marital deduction from estate taxes. The surviving spouse has no legal right to sell, modify, or transfer ownership from the majority of that property, but because they can still use and benefit from it, they are likely to be satisfied.
When the surviving spouse dies, both trusts can distribute to the chosen beneficiaries. The surviving spouse may retain the right to modify their trust at any time, including if they remarry and want to gift property to their new offspring.
Meanwhile, the bypass trust remains intact, allowing the couple’s original beneficiaries to inherit the property as intended.
This arrangement solves a lot of the problems introduced by joint, mutual, and mirror wills. However, forming trusts comes with its own set of expenses and considerations.
Refer to a New Mexico mirror will lawyer to learn more about all of your options and decide on the estate plan that promises the most benefits with respect to your mutual goals.
The best time to start estate planning is right now. New Mexico Financial & Family Law can help you weigh all of your options while considering your unique financial portfolio and family arrangement.
Our goal is to leave you feeling confident about the future with an estate plan that can avoid likely risks while accounting for the factors you feel are most important.
Start planning for your future — and your loved one’s future — when you schedule a no-obligation consultation and estate plan review. Book your appointment with a New Mexico mirror will attorney today when you call 505-503-1637 or contact us online.
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