Will – Husband & Wife

A husband and wife wish to make duplicate/mirror wills and when the first one dies they each wish to leave 1/2 the house to their two children. This is to avoid a nursing home from taking the home if the surviving one is in need of such care. How is this accomplished in the will?

Your question raises a host of issues. First, you have to check state law as to what assets are reachable to cover nursing home costs. In your state the house may be a protected asset. Your question doesn't address other assets either, usually the house is only one of many assets. So if the spouses are really looking to protect their assets from nursing home costs then they should engage an elder law specialist (not just an estate planner) to develop a comprehensive elder law plan. Have the couple looked into long term care insurance? What happens if a child is sued or divorced will the surviving spouse/parent jeopardize the house? What if one or both children turn on the surviving parent (maybe the survivor marries again to someone the children resent, or worse!). Not a great position to be in. Why not use the 1/2 of the house to fund a by pass trust for the benefit of both the surviving spouse and children? Would a will contract in which both spouses commit not to change the will be advisable?