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Holding hands at a funeral

Families need to be prepared for simultaneous deaths, just in case

by Robert Bailey | Contributor
June 9, 2022

When developing an estate plan, individuals often tend to plan as if the estate is going to be distributed exactly as intended. After living a long fulfilling life, they assume they will have all of their assets distributed to their surviving spouse or partner. Then when they die, it will go to the children, grandchildren and so forth.

Unfortunately, even the most prepared people do not often think to plan for every unusual scenario like, what happens if you and your spouse or partner die at the same time? Usually knowing that a significant other is taken care of in the event of death is peace of mind enough. Then we go on with life, traveling and doing various activities together. Some of these couples even engage in adventurous activities together like skydiving and mountain climbing. Yet, the thought never crosses their mind, what if we both die at the same time?

When an unexpected even like this happens without proper planning it can have devastating consequences for both your estate plan and your beneficiaries. First, it could potentially result in reducing the value of your joint and individually held assets in both of your estates. In addition, it may lead to your assets being distributed to people you did not plan to receive them.

The goal with estate planning is to never leave anything to chance, and state probate laws for that matter. So, what happens when a simultaneous death occurs? And, what can you do to protect your assets if this happens?

Simultaneous deaths in estate law

Spouses, in particular, often have several of their assets combined with each other; joint bank accounts, residential property, etc. In addition, spouses typically leave most, if not all, of their estate to each other. When two parties have comingled estates and they die in the same accident, or in close proximity to each other, it can lead to confusion as to who gets the estates' assets and how to handle the administration of each estate.

To address this, and related issues, every state has a probate rule to address what will happen in the event of simultaneous deaths. The first question this rule answers is what qualifies as a simultaneous death? What it does not mean is that spouses have to die at the same exact moment. This rarely happens and is typically impossible to determine.

Depending on which state you live in, these provisions consider deaths simultaneous if they happen anywhere from hours to within even months of each other. The most popular version adopted by many states is the Uniform Simultaneous Death Act. This act holds that if two or more people have no will (or provision addressing this specific issue) and die within a 120-hour period of each other, they are considered to have predeceased each other.

This results in their assets passing down equally to their next in line beneficiary or, if none provided, based on the state's laws of intestacy. In the absence of this provision, the assets would be transferred from one estate to the other and then to the beneficiaries of that estate.

The primary purpose of this act is to avoid unnecessarily deflating the value of an inheritance with double administrative costs during the probate process. Probate is the process used to administer the will of a deceased person or the estate of an individual who dies without a will. Without a provision for “simultaneous” deaths, the ultimate beneficiaries would have the burden of going through the probate process twice and paying estate administration costs on both estates.

Take the example of a husband and wife with one child and assets held both jointly and on their own. The husband and wife were in a car accident in which the wife died 48 hours after the husband. Without a simultaneous death provision, the only child would have to go through the entire probate process for their dad where the assets would have to be transferred to the wife who survived the husband.

Then the child would have to go through the entire probate process again for their mother. Only then could the parents' assets be distributed to their child. The simultaneous death provision eliminates this unnecessary and costly extra step.

Importance of a simultaneous death provision

Despite your state's default provisions, it is prudent to make sure your estate plan contains its own tailored provision in the event of simultaneous death. Any specific provision in the will regarding simultaneous death will then control over your state's default rule.

The first thing you want to do is make sure this provision provides its own timeframe for when a spouse/beneficiary's death is presumed to be simultaneous. Depending on your overall estate plan, you may want a greater period of time than what your state provides by default. Many wills have simultaneous death provisions ranging from 30 to 120 days.

Along with the length of time in which the simultaneous death provision is triggered, there are other specifics you want to make explicitly clear. In many cases, where two individuals are each other's beneficiary (i.e. spouses or partners), you want to clearly set out which individual will be considered predeceased to whom.

Being explicit in both wills ensures, in the unlikely event both parties die simultaneously, the estates will be provided the greatest possible tax and probate savings. This should be clearly and identically stated in both individual's wills. Any ambiguity with regard to these two terms could lead to both estates being treated under a state's default simultaneous death rule.

In addition to the period of time in which a death is considered simultaneous, you'll also want to provide additional safeguards such as contingent beneficiaries. Contingent beneficiaries are the next in line if the asset cannot be transferred to the primary beneficiary. You can include as many levels of contingent beneficiaries as you believe necessary.

A mother comforting a daughter after a family death

When a simultaneous death occurs with your beneficiary, and contingent beneficiaries are listed, the estate will pass directly to these beneficiaries as if they were the primary beneficiaries. Otherwise, if a will does not provide contingent beneficiaries, your assets will be subject to your state's intestacy laws.

The focus here has been about wills but the same holds true for other estate planning instruments. If a trust, deed or insurance policy includes specific language addressing simultaneous deaths and contingent beneficiaries, that provision will apply to the specific assets it controls. That also means if no provision was put in place, and the instrument contains no contingent beneficiaries, your state's default simultaneous death rule and intestacy laws will also control this initially non-probate property. When updating your will, make sure these essential estate documents are updated as well.

Close deaths outside the definition of simultaneous death

Deaths falling within the parameters of this provision are not the only scenario you should consider. While you can extend the period of time in which deaths are considered simultaneous, there is still the possible scenario where two individuals die just outside this timeframe. For this reason, and many others, you should also plan your estate to ensure your assets are preserved and distributed as efficiently as possible even if you and your spouse (or other beneficiary) die in close proximity to each other but not within your state's simultaneous death provision.

If your estate plan has all your assets distributed through your will, subsequent beneficiaries will then be forced to deal with the impact of having to go through the probate process twice. However, there are proactive actions you can take to avoid such a scenario. One of those ways is to put together an estate plan that helps assets avoid probate. This can be accomplished in a variety of ways.

For instance, you can set up a living trust as part of your estate plan. A living trust is a legal right created during your lifetime where you designate a specific person, known as a trustee, to manage your assets for the benefit of a beneficiary who will ultimately receive the assets. How does this help in the situation we have been discussing?

A living trust is a legal instrument designed to transfer assets to a beneficiary while completely bypassing the entire probate process. As a result, even if a beneficiary dies just outside the timeframe of the simultaneous death provision, you still avoid the costs associated with probate and administering an estate. In more complicated situations with individuals of high net worth, a trust can also help avoid not only probate costs but estate taxes as well.

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You also should find ways to proactively avoid difficult situations with property that will go through the probate process as well. A high-dollar value asset you must consider when it comes to estate planning is a jointly held residential property.

Real property, depending on your state, can be held in a variety of ways. There are three primary ways in which two individuals can jointly own a piece of real property. Tenants by the entirety and tenants with the right of survivorship are two of those ways.

If title to the property is held in either of these two ways, the surviving spouse or co-owner becomes the sole owner of the property. The third, tenants in common, gives each party their own undivided interest in the property. As tenants in common, if a co-owner dies, their interest in the property is transferred to their designated beneficiary. Understanding that, let's illustrate the impact one's title in a property could have on a situation in which one co-owner dies just outside the parameters of the simultaneous death provision.

Consider this example. A husband and wife are married and own everything separately except for a residential property that they own as tenants by the entirety. Both spouses were previously married, and each have one child from their previous marriages. Their wills have a simultaneous death provision that is for 30 days, but they elect to not list each other as their beneficiary.

Rather, their wills bequeath everything to their own children as beneficiaries. A car accident occurs, and the husband dies while the wife is on life support. The wife's child has power of attorney over all health-related decisions. Despite a doctor's definitive diagnosis, the child waits until the 31st day to terminate life support.

As a result, the wife is not presumed to have predeceased the husband and, due to the right of survivorship, the property passes entirely to her. This results in the wife's child becoming the sole beneficiary of this property. If, however, the property was held as tenants in common, the husband's estate would have retained his interest in the property and the child of the husband would receive their share of their father's interest in the property.

There are countless scenarios that may occur, both within and outside the bounds of a simultaneous death provision. It is incumbent on you during the estate planning process to evaluate your particular situation and family circumstances as well as take into consideration the prospect of unknown or unexpected events.

Conclusion

A simultaneous death is a tragic occurrence. Unfortunately, you cannot control the timing of your death, and sometimes this unlikely scenario becomes a reality. While one can't control the timing of their death, or our spouses for that matter, there are some things we can control today. By being prepared you can avoid excessive taxes, probate costs and better control where your assets end up.

When reviewing your estate plan, make sure your will has the necessary provisions included in the event of a simultaneous death of you and your spouse/partner. Make sure that you specifically spell out when and how the simultaneous death provision will be triggered. In addition, make sure that you have all of your desired contingent beneficiaries in place. Finally, take into consideration the impact of individually and jointly held property and how your state treats it when you die. Life is unpredictable, your estate plan doesn't need to be.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at legacyassuranceplan.com.

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