Occasionally, we hear stories of a couple that died in a car crash or the like. These types of deaths are tragic, so it’s completely understandable that people who don’t make their living as estate planners would not think of the repercussions that simultaneous death might have on the couple’s estate plan; nevertheless, it’s something that needs to be mulled over. After all, do you know what would happen if you and your spouse died at the same time?
If you and your spouse each have a will in place, and those wills contain a “common disaster” clause, what happens to your estate will be determined by what’s contained within those respective clauses. Most likely, that clause will say something similar to “all of my property shall pass to my spouse, _____, IF he/she survives me by __ days.” If your spouse doesn’t meet the stated time, alternate beneficiaries will get your property. The survival period can be of virtually any length, but if it’s any longer than six months, transfer of the property to the survivor may no longer be tax-free.
Are you now thinking, “Okay, so that’s what happens if you have a will, but what happens if you don’t have one”? If you don’t have a will in place then it’s likely that the transfer of your assets will be affected by the Uniform Simultaneous Death Act (“USDA”). Adopted in most states, the USDA requires a spouse to outlive the other by 120 hours in order to inherit; if not, they’re deemed to have died simultaneously and your property will go to someone else.