Now let ’ s carry our scenario a little further . Let ’ s say that Jim passes away . His will is upheld and the estate transfers to Janet . A few years later , Janet remarries . Eventually she passes away , too . Jim and Janet ’ s children are dismayed to find that they are not going to inherit anything from their mother because Janet made a new will leaving everything to her new husband .

This is the point at which Jim and Janet ’ s children go to see a lawyer . They are outraged that Janet did not , in their view , uphold Jim ’ s will . They refer to the money that they expected to inherit , whether large or small , as ‘ Dad ’ s estate .’ They believe it to be illegal that their father ’ s will wasn ’ t followed and want to know how to fix it .

The fundamental error that the children are making is this : once Jim ’ s estate passed to Janet , it belonged to Janet . A careful reading of the will would show that in Jim ’ s will , it said that his children would inherit his estate if his wife died before he did . In fact , Jim ’ s will was followed to the letter .

Spouses should understand that when they make mirror wills as I ’ ve described here , the spouse who survives and inherits the estate , as Janet did , can legally change his or her own will if he or she wants to . It ’ s legal , and it ’ s done frequently . Sometimes such change is because of a subsequent marriage , but it could also be because the widowed spouse no longer thinks it is proper to divide the estate equally among the children .

There is a way to ensure that a surviving spouse won ’ t ever change his or her will after the first spouse ’ s death . This is achieved by signing wills known as mutual wills . Unfortunately , the information available to the public is confusing on this topic because many advisors and journalists erroneously refer to mirror wills as mutual wills , when in reality they are very different things .

A mutual will contains a clause that specifically says that neither the husband nor the wife will change the will should he or she become widowed . It creates a legal obligation in contract law on both of them not to change their wills . Mutual wills are very rare , and your will won ’ t have a mutuality clause unless you specifically direct your lawyer to include it . I don ’ t like to prepare mutual wills for clients because I feel that doing so doesn ’ t allow for unforeseen but reasonable events that may well occur in the future . Mutual wills may fit clients in certain circumstances , of course , but they are not widely applicable .

I can see why the thought of the surviving spouse changing the will bothers people . It bothers the children who don ’ t get to inherit anything because they think of the funds as something their parents built up for them , and not for a subsequent spouse , or worse , the subsequent spouse ’ s children . They believe their parents ’ plans were derailed . I can also see why this idea bothers the original husband and wife : nobody wants to work and save and invest for years , thinking that the efforts will benefit his or her

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