# Legal question on wills **URL:** \ **Category:** Factual Questions\ **Created:** [July 25, 2018, 9:14pm UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582 "2018-07-25T21:14:51Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Bijou\_Drains](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bijou_drains/32/2814_2.png) [@Bijou\_Drains](https://boards.straightdope.com/u/Bijou_Drains)\ **Post date:** [July 25, 2018, 9:14pm UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/1 "2018-07-25T21:14:51Z")
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. ---
**Author:** ![Tired\_and\_Cranky](https://avatars.discourse-cdn.com/v4/letter/t/a87d85/32.png) [@Tired\_and\_Cranky](https://boards.straightdope.com/u/Tired_and_Cranky)\ **Post date:** [July 25, 2018, 9:18pm UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/2 "2018-07-25T21:18:08Z")
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. > **[Uniform Simultaneous Death Act](https://en.wikipedia.org/wiki/Uniform_Simultaneous_Death_Act)** > > The Uniform Simultaneous Death Act is a uniform act enacted in some U.S. states to alleviate the problem of simultaneous death in determining inheritance. > The Act specifies that, if two or more people die within 120 hours of one another, and no will or other document provides for this situation explicitly, each is considered to have predeceased the others. However, the Act contains a clause that states if the result would be an intestate estate escheating to the state, the 120-hour rule is not ... ---
**Author:** ![Bijou\_Drains](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bijou_drains/32/2814_2.png) [@Bijou\_Drains](https://boards.straightdope.com/u/Bijou_Drains)\ **Post date:** [July 25, 2018, 9:23pm UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/3 "2018-07-25T21:23:57Z")
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. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 25, 2018, 9:35pm UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/4 "2018-07-25T21:35:07Z")
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. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [July 26, 2018, 3:20am UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/5 "2018-07-26T03:20:20Z")
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. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [July 26, 2018, 2:23pm UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/6 "2018-07-26T14:23:14Z")
> [@Northern\_Piper](#): > > 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. 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.) ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 26, 2018, 6:52pm UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/7 "2018-07-26T18:52:02Z")
Quite right! That’s why I proofread my legal drafting a lot more than I proofread my SDMB posts! 😉 ---
**Author:** ![StarvingButStrong](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/starvingbutstrong/32/335_2.png) [@StarvingButStrong](https://boards.straightdope.com/u/StarvingButStrong)\ **Post date:** [July 26, 2018, 8:43pm UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/8 "2018-07-26T20:43:09Z")
> [@Max\_Torque](#): > > 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! 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”? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 26, 2018, 8:46pm UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/9 "2018-07-26T20:46:19Z")
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. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [July 26, 2018, 8:48pm UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/10 "2018-07-26T20:48:33Z")
> [@StarvingButStrong](#): > > 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”? 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. ETA: Ninjaed. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [July 26, 2018, 9:31pm UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/11 "2018-07-26T21:31:59Z")
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. ---
**Author:** ![Bijou\_Drains](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bijou_drains/32/2814_2.png) [@Bijou\_Drains](https://boards.straightdope.com/u/Bijou_Drains)\ **Post date:** [July 26, 2018, 9:44pm UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/12 "2018-07-26T21:44:08Z")
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. ---
**Author:** ![StarvingButStrong](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/starvingbutstrong/32/335_2.png) [@StarvingButStrong](https://boards.straightdope.com/u/StarvingButStrong)\ **Post date:** [July 26, 2018, 11:35pm UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/13 "2018-07-26T23:35:21Z")
> [@Northern\_Piper](#): > > 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. How boringly sensible. I think the duel had some real possibilities… ---
**Author:** ![j666](https://avatars.discourse-cdn.com/v4/letter/j/9de0a6/32.png) [@j666](https://boards.straightdope.com/u/j666)\ **Post date:** [July 27, 2018, 1:08am UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/14 "2018-07-27T01:08:37Z")
Trusts are not only for the rich. ---
**Author:** ![Some\_Call\_Me.Tim](https://avatars.discourse-cdn.com/v4/letter/s/439d5e/32.png) [@Some\_Call\_Me.Tim](https://boards.straightdope.com/u/Some_Call_Me.Tim)\ **Post date:** [July 27, 2018, 1:56am UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/15 "2018-07-27T01:56:57Z")
> [@Northern\_Piper](#): > > 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. 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. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 27, 2018, 2:47am UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/16 "2018-07-27T02:47:52Z")
> [@Northern\_Piper](#): > > 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. 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. ---
**Author:** ![Isilder](https://avatars.discourse-cdn.com/v4/letter/i/cc9497/32.png) [@Isilder](https://boards.straightdope.com/u/Isilder)\ **Post date:** [July 27, 2018, 6:23am UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/17 "2018-07-27T06:23:19Z")
> [@StarvingButStrong](#): > > 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. 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 ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [July 27, 2018, 6:29am UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/18 "2018-07-27T06:29:46Z")
> [@Isilder](#): > > 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. Although many jurisdictions have replaced the common law presumption with a statutory presumption - e.g. that neither person survived the other. > [@Isilder](#): > > But that was before the courts routinely allowed disinherited people to get a share 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. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [July 27, 2018, 7:29am UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/19 "2018-07-27T07:29:39Z")
> [@Northern\_Piper](#): > > 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. 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. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [July 27, 2018, 2:34pm UTC](https://boards.straightdope.com/t/legal-question-on-wills/818582/20 "2018-07-27T14:34:11Z")
> [@md2000](#): > > 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 (c) 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. 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. [Next page](https://boards.straightdope.com/t/legal-question-on-wills/818582.md?page=2)