When you start making an estate plan, you may start thinking about some rather macabre scenarios or hypothetical situations that you never really considered before. One of these involves the simultaneous deaths of both spouses. For example, what would happen to your estate if both you and your spouse were killed in the same automobile accident?
This is not a new question, and all states have adopted laws that specifically deal with this scenario. The original simultaneous death laws originated in the 1940s and have since been adopted in various versions by every state.
Simultaneous death laws state that when both spouses die at the same time, their property is passed assuming that each spouse was the sole surviving person. This means, for example, that if both spouses die, the courts will look at each estate (the property each of the spouses owned) as if that spouse died as the sole surviving spouse.
This occurs because if the courts considered each spouse to have died right before the other, it might require spousal property to have to go through two separate probate processes, and perhaps even incur multiple estate or inheritance tax liabilities on the same property.
It’s important to realize that the simultaneous death laws of each state apply whether you die without leaving behind a last will and testament or if you have created one. However, if you create a will it is often advantageous to include within it a survival clause. The survival clause states that if spouses die within a specific length of one another, say within 21 days, the simultaneous deaths provisions will apply even if they did not die at exactly the same moment.
Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.