spousal will
May 27, 2015 | 30,00 EUR | answered by Bernhard Müller
Good day,
We are a relatively young couple with 2 minor children. In case of emergencies, we would like to have a will prepared to ensure that the surviving spouse can fully inherit the deceased spouse's estate.
We would use the following text for this purpose:
Handwritten by Spouse 1:
Will
We, the spouses Martina Mustermann, formerly Musterfrau, born on DD.MM.YYYY in Musterhausen, and Hermann Mustermann, born on DD.MM.YYYY in Musterstadt, hereby appoint each other as sole and unrestricted heirs.
As final heirs of the surviving spouse, we designate our common children Karl Mustermann, born on DD.MM.YYYY in Musterhausen, and Elke Mustermann, born on DD.MM.YYYY in Musterhausen, in equal parts.
Musterhausen, Date
Signature of Spouse 1 (First and Last Name)
Handwritten by Spouse 2:
This is also my will
Musterhausen, Date
Signature of Spouse 2 (First and Last Name)
1.) Does this wording unequivocally ensure that the surviving spouse can fully and without restrictions inherit the estate? Or do you see any room for interpretation in the wording?
2.) We have read that the second co-signer should add the handwritten phrase "This is also my will" to clarify that the will also represents their intention. Should the first signer also include an addition "This is my will"?
3.) Does it matter if the spouses sign next to each other or if Spouse 1 signs first and then Spouse 2 underneath (as shown above)?
Thank you in advance for your response.
Dear inquirer,
I will answer your questions as follows:
Regarding 3. It does not matter whether the spouses sign next to each other or below each other.
Regarding 2. This addition is not necessary. It also does not harm.
Regarding 1. The wording you have chosen cannot exclude the possibility that after the death of the first deceased, a child may claim their compulsory share.
The survivor can only dispose freely of the part that is not needed to pay out the compulsory share.
There is no wording that can exclude a child from claiming their compulsory share. However, the likelihood of this can be reduced by inserting a penalty clause. This could read:
If any of our children claim their compulsory share after the death of the first deceased, they shall also only receive their compulsory share after the death of the last deceased. The sole final heir shall then be the other child.
It should be noted that although the survivor can dispose of inherited property among the living by selling, consuming, and giving away, they cannot make a new will after the death of the first deceased.
If it is desired for the surviving spouse to be able to make a new will, it would need to be explicitly stated in the will: The survivor is entitled to make a new will.
However, such a clause would weaken the deterrent effect of the penalty clause mentioned above and increase the likelihood that, upon the death of the first deceased, one of the children may claim their compulsory share.
I hope that my answer has been helpful to you.
Kind regards,
Bernhard Müller, Attorney at Law
