Since the repeal of forced heirship laws in Louisiana, spouses have rushed off to execute wills giving everything to the other spouse by disinheriting children that are over the age of twenty-three and suffer from no physical and mental impairments.
A will that gives everything that a spouse owns to the other spouse is what my law firm affectionately calls an “I love you” will. At first, “I love you” may seem like a great idea. However, there are some factors that many spouses don’t think about which may make this type of will not as great an idea as originally thought.
First of all, what if your spouse re-marries? If you give everything to your spouse in your will and that spouse re-marries after you pass away, there is no protection for your children that they will get anything in the future. Your spouse could give everything to their new spouse or even execute an “I love you” will to his or her new spouse. Many spouses have a problem with their children getting left out if the other spouse re-marries.
Secondly, there could be a problem with certain government benefits such as Medicaid. If you have given everything you own to your spouse, not only will your spouse's assets be counted but, everything you have given her in your will as well. Your spouse will not be able to renounce his or her bequest to them. They will have an even larger estate to plan which may have serious financial implications.
Thirdly, what if your spouse later experiences financial problems? If you have given everything you own to your spouse, not only could your spouse's assets be seized by potential creditors but everything you have given her in your will as well.
Before making a hasty decision to execute an “I love you” will, you should consult with an experienced estate planning attorney.