Can My Spouse and I Create a "Joint Will" in Alabama?

From time to time, I am approached by a married individual who wants to create a joint will, a single testamentary document signed by two people, typically spouses. Some of these potential clients follow the advice I outline below, but others move to another attorney who is willing to draft the document they want.

On its surface, it is a clean solution to creating two wills, meaning only one document to keep up with that expresses the spouses' joint intentions. Not so fast.

Section 43-8-250, Code of Alabama, imposes critical limitations on the enforceability of such instruments, particularly when a party seeks to prove that a joint will creates a binding contract not to revoke.

What Section 43-8-250 Provides

Section 43-8-250 addresses contracts concerning succession and explicitly states that "[t]he execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills." This means that simply because two people sign a joint will or execute mirror wills with similar provisions, Alabama law does not automatically assume they have agreed to be legally bound not to change or revoke their testamentary plans.

The statute establishes three strict methods by which a contract to make a will, not to revoke a will, or to die intestate can be proven for wills executed after January 1, 1983:

1. Provisions within the will itself stating the material provisions of the contract;

2. An express reference in the will to a contract, along with extrinsic evidence proving the contract's terms; or

3. A separate writing signed by the decedent evidencing the contract

Why This Matters for Joint Wills in Alabama

The practical effect of Section 43-8-250 is that a joint will is not automatically binding on the surviving spouse or testator. After the first testator dies, the survivor remains free to revoke or modify the joint will unless one of the three statutory methods establishes a contract not to revoke.

Alabama courts have strictly construed these requirements. In Butler v. Butler, 193 So. 3d 713 (Ala. 2015), the Alabama Supreme Court reversed a circuit court ruling that sought to enforce a joint revocable trust as a contract to prevent the surviving spouse from changing her will. The court held that neither the trust language nor the will satisfied the requirements of Section 43-8-250 for proving a contractual obligation. The surviving spouse was therefore free to execute a new will that distributed her estate differently from the prior estate plan.

Practical Implications for Estate Planning in Alabama

For married couples in Alabama considering joint wills, this statute creates significant uncertainty. Unless the will explicitly contains contractual language meeting Section 43-8-250's requirements, or is accompanied by a separate signed contract, the surviving spouse can freely revoke the joint will after the first spouse's death and execute a new will with entirely different beneficiaries.

This is why Alabama estate planning attorneys generally recommend separate wills rather than joint wills for married couples. Separate wills allow each spouse flexibility to respond to changed circumstances while avoiding the ambiguity inherent in joint testamentary documents.

If spouses wish to create a binding, irrevocable plan that survives the death of the first spouse, particularly in blended family situations, they should consider alternatives such as irrevocable trusts or contractual agreements that explicitly satisfy Section 43-8-250's strict requirements. These tools provide greater certainty that the agreed-upon distribution plan will be honored.

The Bottom Line on Joint Wills in Alabama

While Alabama permits joint wills, Section 43-8-250 ensures they are not automatically enforceable as contracts. The statute protects testamentary freedom by requiring clear, documented evidence of any agreement not to revoke. Without meeting one of the three statutory methods of proof, a joint will functions merely as a revocable expression of intent, not a binding contract, leaving the surviving testator free to change course.

For questions about whether a joint will or separate wills are right for your estate planning needs, consult with an experienced Alabama estate planning attorney to protect your legacy and ensure your wishes are honored.