Reciprocal Wills between spouses contain mutual promises to convey property leaving one another as the primary beneficiary to their community and/or separate property. In Texas, these contracts are enforceable if drafted properly. According to the Texas Probate Code, A contractual will is enforceable if a testator’s written Will incorporates the terms of the written spousal or joint contract and spouses execute an enforceable contract. Thus, to create an enforceable contract or testamentary disposition with your spouse, you and your spouse must comply with the statutory formalities codified in the Texas Probate Code.
In other words, your underlying contract promising to name one another as your primary beneficiary must be an enforceable contract. Without an enforceable underlying contract, your contractual will may be invalid and unenforceable. Your attorney can help you determine whether you need to create a separate contract in addition to your written Will.
Stephen A. Mendel, Estate Planning Attorney
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