Recently, I received a question about interpretation of a simultaneous death clause and whether the individual could modify the clause. At first blush, I thought it was an easy answer, but as I thought through the various issues that the question raised, I realized the underlying complexity of the question. I thought if thinking through that issue caused me to pause, then it might do the same for others. I suspect that next week’s blog will return us to recent legislation or failure of celebrity planning, but this topic piqued my interest. As regular readers of this blog know, everyone needs a comprehensive Estate Plan. That comprehensive Estate Plan consists of a Revocable Trust, Will, Property Power of Attorney, Healthcare Power of Attorney, Living Will, and Health Insurance Portability and Accountability Act (HIPAA) Authorization. While each document plays an important role in the plan, only two survive death, or have testamentary effect: the Revocable Trust and the Will.
Most married couples choose to create a plan that benefits the surviving spouse during life and thereafter goes to the couple’s children, or other beneficiaries. This plan works properly as long as it’s clear that one spouse survived the other. What happens if both spouses die at the same time or so close in time that it’s impossible to tell who died first? That’s where the simultaneous death provisions save the day. Simultaneous death clauses presume that one spouse survived the other so that the plan works the way intended. Without the simultaneous death clause, both estates might end up going through the probate process and their respective loved ones might spend significant time, money, and energy determining what goes where. It’s important for the drafting attorney to think through these issues to ensure that the plan structure works best for the family, regardless of which spouse the simultaneous death clause presumes survives. If the documents do not contain provisions regarding survivorship in a simultaneous death situation, then state statutes will make the presumption for the individuals.
Nearly every state has enacted the Uniform Simultaneous Death Act (the “Act”) in its original form, or the revised version promulgated in 1993 (the “Revised Act”) found here: https://www.uniformlaws.org/viewdocument/final-act-122?CommunityKey=09a6e8d3-0ee6-4b94-bd85-2386ed145502&tab=librarydocuments. The Revised Act expanded the narrow application of the Act to include more than simply situations in which it was unclear who died first.
The preamble to the Revised Act details some of the cases that led to revision of the Act. As originally promulgated, application of the Act often led to litigation whereby representatives of each side tried to produce medical evidence that one or the other survived by mere seconds. The preamble uses the word “gruesome” to describe the evidence. The Revised Act addressed that by inserting a 120-hours survivorship requirement which was originally inserted in the Uniform Probate Code years prior. The Revised Act included the “clear and convincing” standard to prove survival by that amount of time in the hopes that would reduce litigation. According to the Revised Act, in a situation when two or more individuals die at the same time, or within 120 hours of one another, then each individual will be treated as having predeceased the other. Thus, if John and Mary die together, for purposes of John’s estate, he will have died first, leaving Mary as the survivor, and for purposes of Mary’s estate, she will have died first leaving John as the survivor. Both the Act and the Revised Act make clear survivorship provisions contained in the documents themselves trump the provisions of the Acts. For this reason, it’s vital to review those provisions and ensure that they accomplish a client’s goals and work together. When both a Revocable Trust and Will are involved, the importance increases as there’s increased opportunity for typographical errors or mismatches in the provisions.
While you might assume that the simultaneous death clause only applies when an individual is married, that’s not the case. These clauses apply anytime two people die at nearly the same time. Most Revocable Trusts and Wills have separate provisions regarding presumption of survivorship for a spouse versus that for a beneficiary. Next time you draft a plan, make sure to consider the implications of the simultaneous death clause and make sure that it works for the individual’s assets and family. If your documents don’t contain a simultaneous death clause, perhaps it’s time to reach out to a qualified Estate Planning attorney to address this important issue.
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