1.3.4 Joint Trusts/Joint Wills Issues

Presumably the issues that have dogged joint Wills will likewise be present with joint trusts. [“‘[A]s a general rule, joint Wills are not regarded with much favor by the courts, and are … apt to invite litigation.”‘ Thompson, The Law of Wills, § 34 at 69 (3d ed. 1947) as quoted in Shimp v. Huff, 315 Md. 624, 626 (1989).

Joint Wills may create binding obligations not to change the ultimate disposition of property after the first death. Indeed, Shimp involved the issue of whether the next spouse’s elective share rights trump those contractual obligations. Shimp held that public policy considerations require that the contractual rights to be subordinate to the elective share rights. As noted elsewhere, Schoukroun v. Karsenty, 177 Md. App. 615 (2007), extended the elective share to trusts.

Nevertheless, it is important when drafting a joint trust to spell out whether, and to what degree, the surviving spouse may change the instrument.

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