WHAT HAPPENS IF MY SPOUSE AND I DIE AT THE SAME TIME?

Nov 17, 2023 | Estate Administration, Estate Planning, Will

WHAT HAPPENS IF MY SPOUSE AND I DIE AT THE SAME TIME?

The Parade of Horribles

 

There’s an overarching principle taught to law school students. It’s called the Parade of Horribles. It may never be more appropriate than when spouses die simultaneously.

Many people avoid having their estate documents drawn up because they find the topic distasteful. If that’s you, the contemplation of both you and your spouse dying at the same time would be unthinkable.

 

That’s why the New Jersey legislature adopted provisions of the Uniform Simultaneous Death Act. Both spouses dying at once is rare, but it does happen. Think of a car accident, plane crash, terrorist attack, or home invasion. Yes, all that fun stuff. No wonder we tend to avoid it.

Smart spouses,* especially if they are parents, take the time to have an attorney draw up their estate documents and establish their final wishes. That packet usually includes a Last Will and Testament, a Durable Power of Attorney, and an Advance Directive (aka a Living Will or Proxy Directive). However, not all attorneys include a Simultaneous Death Clause.

Enter the Uniform Simultaneous Death Act, a law developed and used in about 21 states to determine estate distribution when two or more people die at once or within 120 hours of each other. Here’s how it works:

If two people with rights of survivorship (like spouses) die within the same 120-hour period without a will, this law enables their estate assets to pass to their relatives without having to go from one estate to the other. This smooth transfer eliminates double probate and administrative costs.

To effect this transfer, the executor or administrator must present clear and convincing evidence that the second decedent did not survive the first decedent by 120 hours or more. If the second decedent died within those 120 hours (five days), they are considered by law to have predeceased the event.  In that case, “one-half of the property passes as if one had survived by 120 hours and one-half as if the other had survived by 120 hours.” NJSA 3B:3-32(b)

 

*This law applies to individuals other than spouses, including co-owners with rights of survivorship and joint tenants.

 

You can avoid the application of the Uniform Simultaneous Death Act under certain circumstances.

Simultaneous Death Clause

Your attorney includes a Simultaneous Death Clause in your will or other estate document. Such a clause must contain explicit language relating to simultaneous deaths or deaths in common. That way, you can dictate how you and your partner or spouse would like to have your estates distributed.

Invalid Non-Vested Property Interest or Power of Appointment

If the application of the Act would create an invalid non-vested property interest or power of appointment under a rule against perpetuities that is related to an interest created before the enactment of the Act.

Unintended Failure or Duplication

If the application of the Act would invalidate or duplicate an intended disposition of assets. Such failure or duplication must be proven by clear and convincing evidence.

*For purposes of this section, “co-owners with right of survivorship” includes joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitle one or more to the whole of the property or account on the death of the other or others.

Need help with your estate planning? The attorneys at SGW are here to help. Call us today at 609-409-3500.



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