What is a contractual will?

A contractual will contains a binding agreement between two people to distribute their assets in a certain way. It is typically between a married couple. The most often arrangement is the couple will agree to leave their assets to the survivor of the two, with the remainder per the agreement. It is a method for a couple to have certainty regarding the disposition of their assets after both die. It prevents the surviving spouse from altering the agreement if they should become remarried, for example.

The contractual arrangement may be in separate wills. Or in a single, joint, will.

The contractual agreement may be changed or revoked up until the time the first testator dies. After that, the agreement is not revocable.

Texas Estates Code Section 254.004.  sets out the requirements for a contractual will in Texas:

  A contract executed or entered into on or after September 1, 1979, to make a will or devise, or not to revoke a will or devise, may be established only by:

(1)  a written agreement that is binding and enforceable; or

(2)  a will stating

(A)  that a contract exists; and

(B) the material provisions of the contract.

The execution of a joint will or reciprocal wills does not constitute by itself sufficient evidence of the existence of a contract

Merely calling a will a joint will is not sufficient. The will must also state it is a contract and must state the key provisions of the agreement. The key provision obviously is an agreement on how the assets will be distributed after both testators die.

What if the survivor executes a new will that conflicts with the terms of the contractual will? When that new will is offered for probate, the residuary beneficiaries of the contractual will can object to the new will and instead offer the contractual will. If the contractual will complies with the requirements of Texas law, the court will enforce the contractual will over the new will.

If you are interested in executing a contractual will, please contact an experienced estate planning lawyer. If you have a potential dispute regarding the enforce ability of a contractual will, you should contact an experienced estate litigation lawyer.