A relative of mine died and 3 days later her husband died. He was named in her will. I assume since he was alive when she died it does not matter that his death was only 3 days later? Or is it more complicated than that? Clearly no paperwork was filed during the 3 day period.
You should speak with a competent trusts and estates attorney for the jurisdiction at issue.
Many states have adopted a simultaneous death statute that would treat your relative and her spouse as having died at the same time.
this is NC so we are one of the states that has that law. I guess it makes sense for tax purposes if you have a lot of money but in this case the amounts should be low enough that inheritance tax does not apply.
It also can depend on the terms of the will itself. It’s quite common to put in a clause “all to my spouse, unless he/she survives me by 30 days; if not, to the kids.”
Depends on how they drafted their wills.
I assume a boilerplate will has the “unless they die within X days” clause. Ours does. (Too lazy to dig it up and see how many days, keep thinking 5 or 10). This was specifically to avoid the nitpicking argument “who died first?” if there’s a common disaster, or one spouse lingers in hospital for a few days. It can be an important question if each spouse has children from previous marriages - one set could be left out.
Plus, as the link mentions, there’s the issue of double-taxing estates in some places.
The clause usually reads more like, “If my spouse dies within 120 hours of my death, she is deemed to have predeceased me for the purposes of this will.” A well-written will will have contingencies: one plan for distributing property if your spouse is still alive, and another if she dies before you. That clause just activates the contingency. And if your spouse’s will is written the same way, each of your property is distributed as though the other person died first. Isn’t law fun!
(Also, I think you meant to say “as long as he/she survives me by 30 days” rather than “unless”; your phrasing would make a living spouse inherit nothing.)
Quite right! That’s why I proofread my legal drafting a lot more than I proofread my SDMB posts!
So what happens then? Joe and Sue had a million dollar bank account, and they have wills of that type, and they die in a plane crash.
Joe’s will says everything goes to Bill.
Sue’s will says everything to Tom.
It seems obvious that Bill and Tom should just agree to split it, but what if they aren’t the sensible type?
Do Bill and Tom have to duel or something?
Have the lawyer’s fight it out until the bills reach a million bucks?
Can some judge just lean on them and say “You each get a half million and like it”?
Just because they’re married, doesn’t mean everything is jointly owned. Joe can’t give away Sue’s stuff, and Sue can’t give away Joe’s stuff.
Joe’s stuff would go to Bill; Sue’s stuff would go to Tom; the stuff that is jointly owned would be divided under the relevant family property law, and then Joe’s share would go to Bill, and Sue’s share would go to Tom.
IANAL but it seems pretty obvious. Sue’s property goes to Tom, Joe’s property goes Bill. Any community property gets split up 50/50 like if Bill and Tom are getting a divorce. Agree and make it simple or let the court order you to sell everything and split the money.
Yeah, my boss a few years back had a similar concern. Much of his savings went into a nice custom built house; his wife brought some debt to the marriage. His concern was that if he died first, his wife would get the house Communal property) since of course he’d want her to live there as long as she could; then her kids would get everything if she changed her will. The reverse if he died first, her kids would get nothing, eventually his kids get everything. I pointed out option © that she could remarry and her new husband gets the house when she dies.
Basically, you can’t dictate what happens once someone else gets the house. It’s theirs. The best they could do is both sign a letter of understanding that the idea was all 4 kids, his and hers, would split the proceeds from the house equally once both of them were dead or the surviving spouse chose to sell the house. This was an ordinary fairly well off middle class couple, it was not like they were so rich they could set up trusts or any other games to pass the house on to the next generation.
Moral of the story - there’s a limit to what a will can do.
nothing in the will about 120 hours. But it does contain language about what happens if the spouse is dead when the other spouse dies.
How boringly sensible. I think the duel had some real possibilities…
Trusts are not only for the rich.
That’s a truly bizarre will. The spouse basically can get nothing long-term (all the money goes to the kids on the 31st day of life-after-spouse) but provides the option of willing the money to someone other than the kids if spouse 2 dies before 30 days elapse.
The ‘…provided he/she survives…’ version may be common, but the verbiage above, not so much.
I’m not sure about Canada, but most states here have “elective share” laws under which a person cannot by will completely disinherit his or her spouse. Although in this case of simultaneous death, each spouse is considered to have predeceased the other, so the elective share would not apply.
In the Australian (NSW) law literature, it says the common law and precedent is that if the order of death is unknown or assumed to be same, the eldest is said to have died first. Which implies that you follow the elder ones will and then the youngest’s will.
But that was before the courts routinely allowed disinherited people to get a share
Although many jurisdictions have replaced the common law presumption with a statutory presumption - e.g. that neither person survived the other.
Nitpick: It’s legislatures that allow this. The courts exercise statutory power conferred upon them by the legislature to make appropriate provision for dependents.
And the previous freedom of testamentary disposition was also a statutory creation. At common law there was pretty limited freedom of testamwentary dispostion; your real property went to your heir-at-law (who was not someone you got to choose) and there wasn’t a great deal you could do about it.
And depending on the laws of the jurisdiction (such as Ontar-i-o-i-o-i-o), if a married spouse dies, the surviving spouse can elect to take under the family law regime as if they had separated, rather than take under the will. The next layer of the onion is that in some jurisdictions (such as Ontar-i-o-i . . . well, you get it) a separated spouse can obtain an equalization of the spouses’ growths in net worth during the marriage, such that ownership of assets does not become joint by virtue of marriage, but upon separation the will be a payment from one party to the other that ensures that both spouses come out of the marriage with equal net growths. In such regimes, if Fred cuts Wilma out of his will, Wilma can elect to take as if they were both alive and then separated on his date of death, and thereby get an equalization payment from his estate equivalent to what she would have got if he had not died.
In that situation, you can set up what’s called a “life estate”, which means she has a property interest in the house such that she can live there, but that interest can be revoked. A life estate would go something like, “To my wife, I give a life estate in my house [this assumes he owns the house separately], to live in and enjoy so long as she wishes and pays all taxes, utilities, and reasonable upkeep, but upon her death, or if she moves out of the house or wishes to sell it, the house will vest in fee simple to my children, Drake and Josh [or whoever].” “Fee simple” means you own it outright, no baggage. So, the new husband could live in the house with her, but if she died, he’d be SOL.