By: Olivia R. Holcombe-Volke, Esq.
In a well-drafted Last Will and Testament or Revocable Living Trust for a single person, there will be at least one provision that addresses how long a beneficiary must survive the testator to be deemed to have survived the testator, and, thereby, to be able to inherit under the Will or Trust. In a well-drafted Last Will and Testament or Revocable Living Trust for a married person, there will be at least two provisions that address situations in which the order of death (or survivorship) matters – the one that deals with a beneficiary’s ability to inherit, as mentioned above, as well as a provision that deals specifically with a simultaneous death scenario, whereby both spouses die simultaneously.
Why does it matter?
In the case of addressing how long a beneficiary must survive the testator in order to receive their inheritance, the reasoning is two-fold. For one thing, it is usually the testator’s intention that the particular beneficiary receive the use and enjoyment of the inherited property – not the beneficiaries of the beneficiary’s estate. Therefore, one way to avoid a situation where X leaves property to Y, and Y dies one week after X, leaving Y’s property to Z, and now Z gets to enjoy X’s property – property that X intended for Y – is to have a survivorship requirement built in, such that Y doesn’t inherit unless Y survives X for a certain amount of time. It doesn’t avoid the risk completely, but it at least helps to minimize it. The other reason for setting forth a survivorship requirement (customarily 60-90 days) is to avoid the expense and effort that would be necessary to figure out who gets what in a circumstance where there aren’t clearly LIVING beneficiaries to inherit.
In the case of addressing the simultaneous death scenario, whereby both spouses die in a common accident, the reasoning is again two-fold. First, there is the desire to avoid the need to probate two estates simultaneously within one marriage. Second, there is the opportunity to dictate that the less wealthy spouse survived the wealthier spouse, which may be beneficial for tax purposes and other financial considerations. The method for achieving this is simply to include a provision that says if both spouses die simultaneously, spouse X will be deemed to have survived spouse Y.
The inclusion of survivorship language in a testamentary document is not meant by the testator to be harsh or restrictive. Its purposes are for dictating what happens in the event of certain rare, unpredictable situations – for maintaining control over what happens to one’s estate in the face of an unlikely situation.
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