Joint Wills in Virginia
Risks, Alternatives, and Best Practices
Summary
A joint will is a single document signed by two people, usually spouses. Joint wills are technically valid in Virginia if executed with the same formalities required of any will. They are almost never recommended because they either fail to bind the survivor or, if treated as a contract, deprive the survivor of needed flexibility and invite disputes. Separate but coordinated wills, often called mirror wills, and revocable trusts usually deliver the same goals with fewer risks.
What a Joint Will Is, and How Virginia Treats It
A joint will is one instrument that contains the testamentary plan of two or more people and is separately executed by each testator. It can be probated at each death, but the instrument itself does not carry special status under Virginia law. The validity of a joint will depends on the same statutory requirements as any other will, and each signer’s portion remains revocable during life unless a separate, provable contract says otherwise.
Execution and revocation basics. Virginia requires a will to be in writing and properly signed. A typed will must be signed or acknowledged by the testator in the presence of two witnesses who sign in the testator’s presence. A holographic will in the testator’s handwriting is valid if proved by two disinterested witnesses. Any will can be revoked by destruction or by executing a later will that expressly revokes the former or contains inconsistent provisions.
The Enforceability Problem: Wills Versus Contracts
Virginia draws a sharp line between wills and contracts. Wills are revocable gifts until death. Reciprocal language or a joint format does not automatically create a binding promise not to revoke.
In Keith v. Lulofs (2012), the Supreme Court of Virginia held that the language of mirror image wills is insufficient, standing alone, to form a contract. The survivor was free to change her will because no binding contract was proven. The Court emphasized the difference between the law of wills and the law of contracts and confirmed the general rule that wills are unilaterally revocable.
In Salley v. Burns (1979), the Court recognized that a joint will could be probated at each death but refused to treat the will as a contract where the text and circumstances did not clearly and convincingly establish an agreement to restrict the survivor. The survivor took fee simple title and could dispose of property despite a daughter’s objections.
Virginia’s Dead Man’s Statute heightens the proof burden after one spouse dies. A claimant cannot win on uncorroborated testimony against a decedent’s estate. That rule often defeats attempts to prove an oral nonrevocation agreement between spouses.
Practical takeaway. Unless there is clear, corroborated evidence of a separate contract, a joint or mirror arrangement will not bind the survivor. If a contract is proven, courts typically enforce it in equity, for example by a constructive trust, rather than by voiding a later will.
Six Reasons Joint Wills Are Risky in Virginia
- Illusory certainty. Most joint wills do not actually “lock in” the survivor. The survivor can usually execute a new will or redirect nonprobate assets, which can defeat the couple’s original plan. This leads to disappointed beneficiaries and litigation.
- If deemed contractual, they restrict the survivor. When spouses truly make a binding nonrevocation agreement, the surviving spouse loses flexibility to adapt to remarriage, new or special-needs descendants, creditor problems, or major financial changes. That rigidity can produce unfair and impractical results.
- Probate friction. One instrument must serve two estates. The original will is lodged at the first death. Years later, the second estate may need certified copies and careful construction of which provisions applied at each death, increasing the chance of court involvement and cost under Virginia’s probate framework. Virginia law expressly provides a pathway for interested persons to litigate will validity or construction, which adds risk if the instrument is unclear.
- Nonprobate assets can sidestep the plan. Beneficiary designations, joint accounts with survivorship, POD and TOD registrations, and transfer-on-death deeds are nontestamentary by statute. These assets move outside the will and can be changed by the survivor after the first death, potentially undermining the joint will’s “final” scheme.
- More beneficiaries means more potential disputes. In Virginia, any “person interested” in probate can challenge or defend a will within statutory windows. As the number of beneficiaries grows, there are more people with standing, more opportunities for disagreements over interpretation or administration, and a higher likelihood that at least one person will litigate.
- Statutory overrides. The elective share for a surviving spouse and protections for omitted after-born or after-adopted children can disrupt any will format, including a joint will, if not planned around carefully. The modern elective share reaches portions of the augmented estate and can include nonprobate transfers.
Simultaneous Death and “Single-Estate” Administration
Virginia’s Uniform Simultaneous Death Act sets a default rule that one person must survive another by 120 hours to take. A governing instrument can override that default with a specific survivorship clause. In coordinated mirror wills, you can include a survivorship provision that designates which spouse is deemed to survive for administration if deaths are simultaneous or close in time. That approach can route probate assets through one estate to simplify administration and avoid opening two estates.
Fictional Virginia Scenarios
Blended family shift. Alex and Robin sign a joint will directing that after both deaths, the estate goes equally to Alex’s son and Robin’s daughter. Alex dies first. Robin later signs a new will leaving everything to her daughter. Alex’s son sues, claiming the joint will was irrevocable. Under Keith v. Lulofs, he likely loses unless he can prove a separate contract with clear and convincing evidence.
Survivor’s changed needs. Chris and Pat sign a joint will. After Chris dies, Pat faces high medical expenses and learns that one child now needs a spendthrift or special-needs trust. If the joint will is treated as a contract, Pat may not be able to adapt the plan without violating the agreement.
Large beneficiary group. Sam and Jamie name twelve beneficiaries in a joint plan. After Sam dies, several beneficiaries object to asset sales and threaten to challenge probate. With more “interested persons” in the mix, the risk of a will contest and construction disputes rises, creating delay and cost.
Better Alternatives That Work In Virginia
Mirror wills
Each spouse signs a separate, coordinated will. This preserves day-to-day flexibility and makes probate simpler because each decedent’s will stands on its own. If spouses truly want limits on post-death changes, that intent should be handled with explicit, corroborated contract language rather than by relying on a joint document to do the work of a contract.
Revocable living trusts
A revocable trust can avoid probate for titled assets and can lock in the deceased spouse’s share at the first death while still supporting the survivor. Common designs divide the trust at the first death into a marital share and a family share that becomes irrevocable for children or other remainder beneficiaries. This can deliver the “ultimate beneficiaries are protected” feature that couples often expect from a joint will, but with clearer enforcement and smoother administration.
Explicit nonrevocation agreements, used sparingly
If spouses insist on a binding promise, use a separate written contract or explicit contractual language that is easy to corroborate. Understand the tradeoff. This restricts the survivor’s freedom and may still require a lawsuit to enforce. Courts will enforce a proven contract through equitable remedies, but the proof standard is demanding, especially after one spouse has died.
Survivorship and asset-titling coordination
Use a tailored survivorship clause in each spouse’s will to handle common-disaster scenarios and to consolidate administration in a single estate when desired. Coordinate titles and designations so the nonprobate system does not defeat the overall plan. Examples include joint accounts with rights of survivorship, POD or TOD designations, and transfer-on-death deeds for real property where appropriate.
Frequently Asked Questions
Are joint wills legal in Virginia?
Yes, if executed with the same formalities required of any will. They are seldom advisable because they create either false certainty or harmful rigidity.
Does a joint will bind the survivor?
Not by default. The survivor can usually change the plan unless there is clear and convincing proof of a contract. The Dead Man’s Statute makes proving an oral agreement especially difficult after one spouse dies.
Can we ensure the survivor is “locked in” while still protecting them?
Consider a revocable trust that becomes partly irrevocable at the first death. This can preserve the surviving spouse’s support while locking in the ultimate remainder beneficiaries. If you want an actual nonrevocation promise, use a written, corroborated contract and accept the loss of flexibility.
Will a joint will simplify probate?
Usually not. It can complicate administration because one document must serve for two estates and because construction questions are more likely. Virginia law gives interested persons time-limited avenues to contest or construe a will, which adds risk if language is unclear.
What about simultaneous death or near-simultaneous death?
Virginia’s default 120-hour survivorship rule can be overridden by a governing instrument. A tailored survivorship clause in coordinated wills can route probate through a single estate to reduce duplication and cost.
Bottom Line
Joint wills are valid in Virginia but are poor risk management for most couples. They either do not bind the survivor or they lock in an outdated plan that cannot respond to life’s changes. Separate mirror wills and revocable trusts achieve the same high-level goals with clarity, enforceability, and flexibility. If you already have a joint will, consider replacing it with a modern, Virginia-specific plan that coordinates wills, trusts, titling, and beneficiary designations.
