How Does a Last Will and Testament Treat Simultaneous Death

• A last will and testament is one of the most important documents you can create. It ensures your wishes are followed after you die and that your family is provided for. Your will specifies how your assets are distributed, names guardians for minor children, and can address pet care. Working with a lawyer helps you understand your options, avoid disputes among heirs, and make sure your will is valid under your state's laws.

What a will does

A will directs how your assets are distributed and names an executor to carry out your wishes. You can appoint guardians for minor children and specify funeral arrangements. Without a will, your state's intestacy laws decide how your assets are divided, which may not match what you want. That's why updating your will matters, especially after major life changes like marriage, divorce, or the birth of children.

When two people die at the same time, in a car accident, for example, the law needs a way to determine the order of death for inheritance purposes. This matters because it affects who inherits what and how assets pass between estates. Different states have different rules to handle these situations.

Before you worry about the legal details, ask yourself two practical questions. First, have you found someone willing and able to be guardian for your children? Second, is there enough money to support them? If you can't answer both questions clearly, the fanciest legal language won't help much.

How wills handle simultaneous death

Most wills for married couples include a survivorship clause: "All my property to my spouse, IF he/she survives me by at least 30 days. Otherwise, all to the children." The 30-day period is arbitrary, but it should be less than six months. Longer periods can affect the tax-free transfer of property to a surviving spouse.

To see how this works, imagine the husband and wife die together. Under the wife's will, her husband did not survive her by 30 days, so her property goes to the children instead of to him. Under the husband's will, his wife did not survive him by 30 days, so his property also goes to the children.

If the couple has only shared children, the outcome is the same either way: the children inherit both estates. But if either spouse has children from a previous relationship, the order of death can make a real difference.

Why the order of death matters

Suppose a husband brought $100,000 and a son from a previous marriage into his current relationship. He wants his wife to have access to that money while she's alive, but if she dies first, he wants his son to inherit it. In his will, his wife is the primary beneficiary of the $100,000, and his son is the alternate.

If husband and wife die together in an accident, the executor sees that the wife did not survive 30 days. She inherits nothing. The $100,000 goes to the son as the alternate beneficiary, exactly as the husband planned.

But what if the husband's will said "everything to my wife" with no survivorship period, and also included a clause saying "if we die together, my wife is presumed to have survived me"? Then the wife would inherit the $100,000 even though she died a moment after her husband. That money would then flow into her estate and be distributed according to her will, which might not include the husband's son at all. He would receive nothing.

This kind of presumption can be useful in some situations, particularly for federal estate tax purposes, but it can also unintentionally disinherit children from previous marriages.

The Uniform Simultaneous Death Act

Most states have adopted the Uniform Simultaneous Death Act to handle cases where the order of death cannot be determined. The act applies only when wills are silent on the issue or when there are no wills at all.

Under the act, each spouse is treated as if they survived the other. Nothing passes from one spouse to the other. This produces the same result as the standard survivorship clause in most wills.

If there is no will, property is distributed according to your state's intestacy law. The Uniform Act determines the order of death; state law or your will determines who actually gets the property.

For life insurance, the act provides that if the insured and beneficiary die at the same time, the insured is presumed to have survived. This means the death benefit goes to the alternate beneficiary instead of the primary beneficiary's estate. That's why naming an alternate beneficiary on your policies matters.

The outcome is different if the wife is presumed to survive. This time, the husband's Executor is instructed by that clause to distribute property as if the wife were still alive. Never mind that she lived only a minute longer. She takes everything under her husband's Will, including the $100,000 he wanted his first son to get if the wife did not need it.

The money is formally transferred to the wife, as if she had outlived her husband by ten years instead of a minute. It is lumped in with the rest of her property. Then everything, including the $100,000, is distributed to her kids according to her Will. Her Will does not mention the husband's son by a previous marriage. That son would get absolutely nothing.