Wills for Married Couples and Blended Families

What's the difference between mirror wills and a joint will?

The drafters of the Uniform Probate Code, a model law many states draw on, noted that "in many states" a joint will "gives rise to a presumption that the parties had contracted not to revoke the will except by consent of both." They also noted that claimed agreements not to revoke wills have caused a lot of litigation. The code itself rejects that presumption and requires proof of any such contract in the will or a signed writing (UPC §2-514).

The practical answer: each spouse signs a separate will. If you truly want to bind each other, have an attorney write a clear contract, so no one has to guess later.

What rights does a surviving spouse have?

Your spouse's rights depend on whether you live in a common-law state or a community property state.

The elective share in common-law states

In most states, property belongs to the spouse whose name is on it. To keep a spouse from being left with nothing, the Uniform Probate Code's drafters wrote that "almost all" common-law states give a surviving spouse a claim to part of the estate. The survivor can accept the will or "elect" a share instead. Under traditional laws, that share is often one-third of the estate (Uniform Probate Code, Article II, Part 2).

The code's own version grows with the length of the marriage. The survivor can claim 50% of the "marital-property portion" of a combined estate that includes both spouses' assets, plus extra support if the survivor would otherwise have less than $75,000 (UPC §§2-202, 2-203):

States that adopted this approach may use different numbers. Spouses can waive the elective share in a written agreement, such as a prenuptial agreement, but under the code it can be thrown out if, for example, the survivor didn't get adequate financial disclosure or couldn't get independent legal advice (UPC §2-213).

Community property states

The IRS lists nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin (IRS Publication 555). Alaska, South Dakota and Tennessee let couples opt in (Internal Revenue Manual 25.18.1).

In these states, each spouse generally owns half of what either earns during the marriage. In California, for example, at death "one-half of the community property belongs to the surviving spouse," and your will can give away only your half plus your separate property (Cal. Prob. Code §100, §6101).

Retirement accounts and taxes

Federal law also gives your spouse strong rights in most workplace retirement plans, such as a 401(k). Naming anyone else as beneficiary usually requires your spouse's written consent (26 U.S.C. §401(a)(11)). For federal estate tax, what you leave to a spouse who is a U.S. citizen is generally deductible (26 U.S.C. §2056), and each person can pass $15 million tax-free in 2026 (IRS).

Do stepchildren inherit if there's no will?

Generally not, unless you legally adopted them. Intestacy laws are written around spouses and blood or adopted relatives. Under the Uniform Probate Code, a stepchild inherits only as a last resort: if their parent, your spouse, died before you, and you leave no descendants, parents, grandparents or their descendants (UPC §2-103). California has a narrow exception. It lets a stepchild inherit if the relationship began when the child was a minor, lasted for life, and there's "clear and convincing evidence" the stepparent would have adopted the child but for a legal barrier (Cal. Prob. Code §6454).

Even with a will, wording matters. Under the code, a gift to "my children" generally excludes step relatives unless the will or circumstances show you meant to include them (UPC §2-705). So name each stepchild you want to include.

Blended families also get different results without a will. Under the code's model text, if you have children from another relationship, your spouse receives the first $150,000 plus half of the rest, and your children share the remainder (UPC §2-102). Your state may differ. See what happens if you die without a will.

How can you provide for a spouse and children from an earlier relationship?

Our free will builder can write either of the first two plans. Its "spouse, then children" option leaves everything to your spouse if they survive you, and otherwise to your own descendants, which suits couples whose children are all shared. Its "named people with percentages" option lets you split your estate now and name each child and stepchild, and you can choose to pass a child's share to that child's descendants. It's free, needs no account and keeps your answers in your browser. It doesn't create trusts, and it doesn't prepare wills for Louisiana or North Carolina residents.

When is a trust better than a will?

Consider a trust when you want your spouse supported for life but your own children to receive what's left. A will that leaves everything to your spouse can't guarantee that, because your spouse will own the property outright.

A trust can give your spouse all the income for life, with the rest going to your children afterward. For larger estates, this kind of trust can qualify for the federal marital deduction if the executor elects it, which is called a QTIP trust (26 U.S.C. §2056(b)(7)). A trust is also worth discussing if a child has special needs or your estate includes a business. See will vs. living trust, and talk with an estate planning attorney about the right setup for your family.