The chances of a married couple dying in a common accident or within a very short time of one another are probably quite slim. However, it does happen. And it happens frequently enough that most states have laws to address the issue and the problems that can arise from simultaneous deaths. What are these laws, why do we need them, and can we work around them if we need to?
The Problems Created by Simultaneous Deaths
Multiple Probate Cases
When the estates of multiple individuals must go through the probate process following simultaneous or nearly simultaneous deaths, there may be additional costs, delays, and red tape.
For example, suppose a married couple die in the same car accident, with the husband dying only a few hours after the wife. Also suppose that the titles of all the couple's property were in only the wife's name. If both spouses' wills named the other spouse as the sole beneficiary of their respective property and their children as contingent beneficiaries, absent a survivorship requirement in the wills, the law would normally require separate probate cases to administer the spouses' estates. First, the wife's will would direct the transfer of all of the property to the husband's estate because he survived her by a few hours; then the husband's will would direct the transfer of all the property to the children.
As a reminder, probate is the court process that appoints an executor, also known as a “personal representative,” and grants that person the right to collect a deceased person's accounts and property, sell the property if necessary, pay off the decedent's debts, and eventually distribute any remaining property to the decedent's heirs. In many states (including Illinois), probate can be a lengthy, expensive, and decidedly public process that most people prefer to avoid. When you are forced to duplicate that process for related parties who died simultaneously, it can be needlessly expensive, time-consuming, and complicated.
Estate Tax Complications
Another problem arising from the simultaneous deaths of a married couple is substantial wealth that may be subject to estate tax. Currently, the estate tax exemption amounts are historically high ($11.7 million per person in 2021). However, those amounts may be reduced significantly in the future under the Biden administration, or, at the very least, they are set to return to pre-TCJA (Tax Cuts and Jobs Act) amounts in 2026. Therefore, for purposes of this example, let us assume that within the next couple of years, the estate tax exemption amount available to all US citizens becomes $5 million. Suppose a husband and wife die in a plane crash. The husband owned separate property worth $3 million, and his wife owned separate property worth $10 million. In that case, a sticky question arises regarding the tax implications of who died first. If it is impossible to determine who died first, there might be disagreement between the surviving family and the Internal Revenue Service about how the estate tax should be calculated. If we assume that the husband died first and left everything to his wife according to his will, then upon her death, $8 million would be potentially subject to estate tax at a 40 percent rate ($10 million + $3 million - $5 million of wife's estate tax exemption = $8 million potentially subject to estate tax).
On the other hand, assume that the wife died first and that her estate planning documents include a revocable trust agreement establishing a credit shelter trust to hold (and shelter from estate taxes by applying her available estate tax exemption) up to $5 million of her separate property, with the remainder of her estate passing to her husband free of estate tax because of the unlimited marital deduction. In this scenario, upon the administration of the husband's estate, only $3 million of his estate would be subject to the 40 percent estate tax ($10 million - $5 million + $3 million = $8 million in the husband's estate, less $5 million from husband's taxable estate = $3 million subject to estate tax). This is a much better result than $8 million subject to the estate tax.
These examples illustrate the need to have alternative solutions for how to treat the respective estates of related individuals who die simultaneously or almost simultaneously and would otherwise inherit from one another.
Many states have default laws to address these common issues, including the Uniform Simultaneous Death Act and various versions of the Uniform Probate Code. Generally speaking, these laws establish a rule that when two individuals die within 120 hours of each other, each individual will be treated as having predeceased the other. Thus, if a husband and wife die at the same time or within 120 hours of each other, and the husband's will distributes 100 percent of his property to his wife at his death, the wife is treated as having predeceased her husband, allowing his estate to pass to the individuals or organizations named in his will as contingent or remainder beneficiaries instead of to the estate of his deceased wife. This statutory requirement helps eliminate the need for separate probate of the wife's estate only for it to receive the husband's property and then pass it to the children through her estate. Though multiple probates might still be needed, if the wife had separate property that did not pass by right of survivorship or beneficiary designation.
Most, if not all, state simultaneous-death laws make exceptions to the default rule if the deceased individual's will or trust contains a simultaneous-death provision. A will or trust can be drafted to lengthen the survivorship requirement to as much time as you consider appropriate, such as 30 days, 90 days, 120 days, etc. You can also specify which spouse should be considered to have predeceased the other in a simultaneous-death situation. In the estate tax example described above, it could be useful to include a provision in both spouses' estate planning documents stating that the wife should be presumed to have predeceased the husband in the event of simultaneous death to ensure that the estates of both spouses are administered to result in the greatest possible tax savings.
Reviewing Your Estate Plan
If you are unsure what would happen to your accounts and property if you and your spouse were to die simultaneously or within a short time of one another, start by carefully reading your will or trust documents. You may be surprised to learn that one spouse will be presumed to have predeceased the other. If such a presumption is unwarranted, speak with your estate planning attorney to determine why that provision was included and whether the reason is tax related or something else. If there is no survivorship or simultaneous-death provision in your estate planning documents, consider what your state law requires in such a circumstance. If it is still not clear how simultaneous deaths might impact your estate planning, contact your estate planning attorney to gain a better understanding of what would happen in a simultaneous-death situation and whether you and your spouse approve of the result. Call us if we can help you answer these questions.