"Till Death Us Do Part" – Marriage and Wills

You're married and you both want to write wills.

Here's the breakdown of information that's important to know:

1. Couples Writing a Will Together

In most cases married couples want to draft their wills together and that's perfectly OK from a legal perspective.

Although Section 35 of the Israeli Inheritance Law prohibits a beneficiary of a will from being involved in its drafting due to concerns about undue influence (and thus is generally much stricter than other countries), it makes an exception for married couples. That is to say: even though most couples want their share of the estate to go to their spouse — thus making them, in effect, beneficiaries of each other — Israeli law allows them to draft a joint will together.

2. The Default if You Don't Have a Will

That being said, it's important to note that even though you're writing your wills together, each individual will only relates to your own personal share of the assets.

In example, under Israeli law, when a couple owns an apartment or a bank account registered in both their names, each person is considered the owner of only 50% of that specific asset. Which practically means, that unlike other countries, where in many cases the spouse's share (in a bank account, for example) automatically gets transferred to the surviving spouse (what's called "transfer on death" or TOD in short), in Israel, the 50% belonging to one spouse will only pass to the other if that is explicitly stated in a will. Otherwise, it will be divided by default between the surviving spouse and the children, which creates crazy complications when distributing the assets between the heirs when there's no will.

Therefore, writing a will is critical to prevent these kinds of complications. 

3. What if You Have a Prenup/Postnup?

Even if you have a prenuptial agreement, it doesn't necessarily need to  affect the way you write your will, since each spouse's will relates only to their share of the assets.

The only difference is that when you don't have a prenup, each spouse is defined by default as owning 50% of the assets (i.e. if you bought an apartment together, the Tabu lists each of you as owner of 50%). However, when there's a prenuptial agreement, the percentages of ownership is defined only according to what is written in the agreement.

But aside from that, everything else remains the same. In example, if you stated in your will that your share goes fully to your spouse — then that's what will happen, whether it's half of the apartment, the entire apartment, or any other asset that belongs solely to you according to the prenuptial agreement.

4. One Joint Document or Two?

Even if your wills mirror each other (i.e.: If I go first – everything goes to you; if I go last – everything goes equally to our children), it's usually more practical and advisable to sign individual documents and not a joint one.

The main reason for that is, that most chances are that one of you is going to outlive the other, and when that happens, you'll be able to probate your spouse's Will (or vice versa) which is a self-contained document in of its own, and the second will will be probated only when you pass away at some other time.

5. Don't Go "Mutual"

If you're preparing your wills together it's advisable to add a clause that explicitly allows your spouse to change his/her will after your demise.

That is in order to avoid a potential situation in which someone can challenge the surviving spouses' right to change their will (after the first spouses' demise), claiming that since the wills were drafted at the same time, they are dependent on each other ("mutual") and therefore cannot be altered.

Adding the above clause gives the surviving spouse the flexibility to adapt to changes that may be needed in the future, and that cannot be anticipated in any way at this point in time.

6. What about the "Machsheifa" scenario?

And if you'll ask: "Well, how can I know that my spouse won't remarry and give all my assets to the some manipulative second spouse?"

I’ll answer:

A. You don't know. You'll need to trust your spouse. But the alternative can be much worse, because locking your spouse into a problematic setup that may not be relevant in many years is much more likely than your spouse being lured into some fishy will changing.

B. If your spouse does happen to remarry into a manipulative second marriage, G-d forbid, trust me: The manipulator can find 100+ other ways to extort money out of your spouse aside from making him/her change their will.

So, bottom line, my advice: Trust your spouse - especially during your lifetime, but also after death….