Can My Will Pass Everything to My Spouse, Then As I Direct After My Spouse Dies?

It’s a common question: can my Last Will and Testament be set up to pass everything to my Spouse when I die, then later distribute our assets as I direct after my spouse dies?

A Last Will and Testament generally cannot pass all property to a surviving spouse and ‘reserve’ distribution of specific gifts to others at some later point in time after the death of the maker.

Married couples can create two Wills that provides “upon death, my spouse gets all of my property…” documents. But the Will of the first-to-die spouse cannot ‘hold’ any property to be distributed to beneficiaries pending the death of the second spouse.

Once the property of the first-to-die spouse is passed to the surviving spouse through the probate process, by law that surviving spouse can do with the property whatever he/she desires: sell it, use it, give it away, etc. The surviving spouse can even create a new Last Will document that transfers the property to other beneficiaries not listed in the original Will of the first-to-die spouse.

(Granted, if both spouses create identical Married with Children Will documents then follow the tenets of those documents after the passing of one spouse, the net result of the stated intent is created. But that assumes the surviving spouse keeps and follows the Last Will and Testament exactly as written.)

Absent some rather sophisticated estate planning or the use of a Revocable Living Trust, the first-to-die spouse cannot dictate what the surviving spouse can do with that property. The first-to-die spouse can transfer some of his/her property to his/her surviving spouse and provide for specific gifts to others through his/her Will, but cannot control the timing with a single document as described in your question.

Bottom line, the limitations outlined above apply to any couple’s Will.

If the control of the distribution of property sometime after the death of the first-to-die spouse is critical, then a Revocable Living Trust might be considered; under a Trust, the surviving spouse can have the benefit of the use and enjoyment of the property transferred to the Trust, but once the surviving spouse passes, subsequent beneficiaries can be named with specific gifting.

Learn more about Last Will and Testament legal forms software here. Have more questions about how a Will works? See more on Wills Ask Standard Legal!