Various clocks on a wall to demonstrate the timing of Simultaneous DeathsIt's what most people think of as the worst-case scenario, especially if you have children: you and your spouse die at the same time. It's called "simultaneous death" and there is even a law called the Uniform Simultaneous Death Act that has suggested language for states to adopt for this situation. If this were to happen to you and your spouse, you could be leaving behind a lot of legal work and lawyers' fees for your loved ones to deal with. Even worse, you could be leaving it up to your local court to decide who your children will go live with after you're gone.

The good news is that it doesn't have to be this way. For those of you who have created an estate plan, your will should have a plan for what happens to your children if you were to both pass away simultaneously. You've already made a plan to ensure that the right people are taking care of your children and managing their money for them. In addition, your will even likely has a provision that says in the case of simultaneous death, which one of you is presumed to have lived longer than the other.

Why Does it Matter?

For many people, simultaneous death seems like something you read about in the news or see in the movies, but you doubt it will happen to you. However, these situations aren't as rare as you may think as couples die in airplane crashes, car accidents, and other disastrous circumstances all the time. For many people though, they wonder why does it even matter?

The main reason it matters is that your local probate court has to decide how the assets are distributed. It's a classic law school textbook problem that we all studied. But let's assume that you and your spouse don't die simultaneously, but you die almost week apart. So A and B are married. A dies on Sunday night and B lives until the following Saturday morning. If A and B were married and didn't have a will, the normal progression would be:

  • A passes away
  • B inherits A's estate
  • B passes away
  • A&B's children inherit B's estate (which includes A's estate)

This is a simplified example, but it shows the natural progression of an inheritance. Now, if A&B die simultaneously, how does a court decide who inherits what from the estate? Let's complicate things a little and say that A&B each have children from a prior marriage. Our example then can look like this:

  • A passes away
  • B inherit's A's estate
  • B passes away
  • B's children inherit B's estate (and A's children miss out on their inheritance)

Again, this is an oversimplified example but can show how important the order of death can be, especially in a blended family.

How Do You Protect Yourself?

It's actually quite simple to protect your family's legacy. You need to put together an estate plan (especially if you have a blended family) that spells out how you want your assets distributed. In the second scenario above, if A has an estate plan that leaves half of his estate to B and the rest to his children, then A's children aren't left out in the cold. And if you and your spouse are putting together an estate plan at the same time, your documents will often also have a provision that specifies who is presumed to have died first in the case of a "simultaneous death." This can be important if you have retirement accounts and life insurance policies with beneficiary designations and those companies need to sort out who died first so they can properly distribute the assets.

There's no reason not to have even a basic estate plan, which can specify what happens in case you and your spouse die simultaneously so that you don't ever have to worry about your legacy being tied up while lawyers and the court try to sort out affairs.

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Next Steps

If you don't have an estate plan yet, or if it's been a while since yours was updated (and you're not even sure if it has a simultaneous death provision), let's set up a complimentary Legal Strategy Session to discuss the best options for you and your family.

Andrew Ayers
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I work with business and estate planning clients to craft legal solutions to protect their legacies.
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