While you and your spouse may structure your estate plans upon the assumption that one of you will survive the other, this might not actually happen. Due to an auto accident or natural disaster, you and your spouse may die at the same time or die under such circumstances that no one can figure out who died first. If this happens, it can create problems for the distribution of your estates.
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The Uniform Simultaneous Death Act
Most states have enacted some version of the Uniform Simultaneous Death Act, which is a model statute that resolves many of the questions that can arise when a couple dies simultaneously. Under the act, a person is said to have predeceased the other if it can't be shown that the person didn't survive the other by at least 120 hours. As such, if one of you dies in a car accident and the other is injured in the same wreck but dies in the ambulance on the way to the hospital, you will be held to have predeceased each other even though that isn't physically possible.
What Your Will Says
Application of the Uniform Simultaneous Death Act can create some confusing or undesirable results. If your state has adopted it and you want to avoid its operation, you and your spouse can make wills that sidestep the act and get around the problems that can arise if you both die at the same time. You can specify that if this happens, only one of you will be presumed to have predeceased the other. Additionally, you can both leave your estates in equal shares to the same relatives. That way, it won't matter who dies first; either way the estate passes, it will end up in the same hands.
What Your State's Laws of Intestate Succession Say
If you both die without a will, your estate will pass under the laws of intestate succession. If you die at the same time without kids, your estates will be distributed to your nearest relatives first, starting with your parents and then moving out to your aunts and uncles and their children. Lawyers for the families will have to figure out what each of you would have inherited from the other under your state's intestate succession laws and then distribute that to your respective heirs.
Planning for Contingencies
In order to avoid the difficulties that can arise from simultaneous death and intestacy, you and your spouse should develop an estate plan with an estate planning attorney licensed to practice in your state. While state-specific will forms are generally available for purchase online, a will form can't answer your questions about how state law applies to the unique facts of your family situation and your estate. If you and your spouse are childless and concerned about what will happen to your property when you die, developing an estate plan is crucial.
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- FindLaw: Understanding Intestacy -- If You Die Without an Estate Plan
- Encyclopedia Britannica: Intestate Succession
- Robert J. Kulas; What Happens When Spouses Pass Away at the Same Time?; Robert J. Kulas: March 2011
- Penn Law: Uniform Simultaneous Death Act (1991)
- Senior Magazine Online: How Does a Last Will and Testament Treat Simultaneous Death?