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I'm going through the process of creating a simple (my first) last will and testament.

I'm young with modest assets. I'm married with no children and live in the United States. I'd like to have something in place to make things as seamless as possible in the case of my death.

My spouse will be my first beneficiary, but I will also have other family as secondary beneficiaries in the case my spouse and I die at the same time.

While creating the will, I was considering the following scenario: my spouse and I are in an accident together. I die immediately, yet they live for some longer period of time (days/months). They eventually die as well.

I think the question boils down to: at what point does my will go into effect and pass my assets to them? Does it have to do with their condition (conscious/unconscious, mentally competent/incompetent)? Does this change based on who is the executor of the will?

It would seem a bit contrary to my wishes if I were to pass, my assets pass to my spouse, and then shortly to their second beneficiaries instead of mine, especially if it was always unlikely they'd recover. How do wills typically handle this edge case?

CJ Dennis
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jdf
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    I imagine there are tax implications as well, if assets have to be inherited twice. Although considering the first beneficiary is your wife, this may be excepted. – Mast Dec 03 '19 at 14:56
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    @Mast: The US only has estate taxes for estates over $5.3 million, so if OP has "modest assets" this is probably not a concern. – Nate Eldredge Dec 03 '19 at 15:58
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    A will takes effect when you are no longer around to explain what you meant. Don't take chances. Get expert advice: pay a lawyer to do it right. – PJB Dec 03 '19 at 17:32
  • @Nate Seriously? The threshold is much, much lower here. Life ain't fair. Death ain't either, come to think of it... – Mast Dec 03 '19 at 19:23
  • @Mast In the UK prior to 2007 there were tax implications if you didn't inherit twice via a spouse (because spouses could claim the tax free allowance each). Tax rules are complicated and assumptions can be very costly. – JBentley Dec 03 '19 at 20:51
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    @NateEldredge+ starting last year (2018) TCJA doubled the threshold to $10m plus inflation ($11.2m for 2018, $11.4m for 2019, I haven't seen 2020 update yet). Like many TCJA provisions this is scheduled to expire in 2026 and revert to prior law, but there will almost certainly be pressure to extend it. And as Mast noted, US estate tax excludes all amounts going to a (surviving) spouse. – dave_thompson_085 Dec 03 '19 at 21:23
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    I just wrote a will and did something similar to what you want, however, I live in Sweden so it might differ from the US. We have something called "inheritance with the right to use", which basically means that my spouse can use the things for as long as she is alive, but when she dies the things are given to my heirs and not hers. She can't change that in her will either. The legal wording was kind of tricky though, so I would suggest contacting a lawyer to get it done correctly. – Pphoenix Dec 04 '19 at 10:31
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    @Pphoenix: I think in common-law places this is called a life interest. – Nate Eldredge Dec 04 '19 at 23:39

1 Answers1

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Wills typically handle this by specifying a survivorship period. Such a clause may say, in effect, "I leave all my assets to my spouse, provided they survive me by at least 30 days, and otherwise to beneficiaries X,Y,Z." That way, if your spouse dies shortly after you, your assets go to X,Y,Z, rather than going to your spouse and then to their beneficiaries.

Another issue this avoids: suppose you are in an accident together, and by the time rescuers arrive, you are both dead. Without a survivorship period requirement, courts might have to try to determine whether one of you survived a few seconds longer than the other, in order to decide whose beneficiaries get the assets. That could be difficult and error-prone, not to mention gruesome and upsetting to loved ones. But with such a requirement, it's not necessary.

The linked article notes that in many jurisdictions, if you don't specify a survivorship period, there may be a statutory period that applies automatically.

Nate Eldredge
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    Of course with modern medicine the spouse can end up in a vegetative state for years on end while the inheritance is used up to no benefit at all. So hard to consider all circumstances. – user3067860 Dec 03 '19 at 15:54
  • Which is why you should have a living will (and communicate clearly with executor and relatives your wishes) regarding this exact scenario. – Jonathan Fite Dec 03 '19 at 19:20
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    In the UK, if it is uncertain which order members of a group died in, they are considered to have died in descending order of age. In the US, a lot of states use the [Uniform Simultaneous Death Act]. If there is no will or other provision, people who die within 120 hours of each other, each is considered to have predeceased all the others. – Richard Ward Dec 03 '19 at 20:20
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    There should have been another link in my last comment: https://en.wikipedia.org/wiki/Uniform_Simultaneous_Death_Act – Richard Ward Dec 03 '19 at 20:28
  • @RichardWard appreciate the links there, useful addition to the answer. – jdf Dec 03 '19 at 21:05
  • For 30 days it's likely not an issue, but say with a period of a year, would the spouse have to wait the entire year to get the assets or would they get them immediately but if they die before a year is up they go to X,Y,Z? – Aequitas Dec 05 '19 at 02:27
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    If the assets become the property of the spouse, the decedent's will no longer has any control over them. The spouse can spend it all or give it away, and upon the spouse's death, it's the spouse's will that determines where it goes. So if you really want a one-year survivorship period (which would be unusual; the linked article says they are normally less than 60 days), the spouse would have to wait a full year to collect. – Nate Eldredge Dec 05 '19 at 02:48
  • @Aequitas: It is possible to impose more complicated conditions by having the assets put in a trust. You could then have a situation where the spouse is given a certain amount per year, and upon their death, something else happens. But that's rather different. – Nate Eldredge Dec 05 '19 at 02:50
  • @NateEldredge In many situations, the problem in paragraph two may be better handed by putting a simultaneous death clause in the will. These say that if the spouses die at the same time, one of them will be deemed to have died first. (For obvious reasons, this is called the "Titanic" clause.) – Just a guy Dec 05 '19 at 06:02
  • @Justaguy That won't work in the UK (and possibly other jurisdictions) because of the governing legislation. It would be necessary to have a court confirm that the law should be overridden. – Andrew Leach Dec 05 '19 at 12:17
  • @AndrewLeach Interesting! In the US, the statutory assumption is a default that can be changed by explicit language in the will. – Just a guy Dec 05 '19 at 13:59