By Cowles Liipfert

By Cowles Liipfert

You should try to provide for every contingency in your will, even if unlikely to happen.

The wills for a married couple often leave their assets to the other spouse if living, or in the alternative to, someone else if the other spouse is not living.  For example, a simple will frequently leaves the testator’s estate to his or her spouse, if living, and if not living, to the children of the testator, either outright or in trust.

What happens if both spouses die under such circumstances that it cannot be determined with certainty which spouse predeceased the other?  This happens most often in an automobile crash, but can occur under other circumstances, such as a plane crash, a natural disaster, or even by communicable disease or old age infirmities.  On rare occasion elderly couples are somewhat isolated, and the two deaths are discovered after the fact.

What if a beneficiary other than a spouse dies under similar circumstances?  For example, a child could die in the same automobile accident or plane crash as the parents.  In that case does the beneficiary’s share go to the child’s estate or does it pass to someone else?  

What about assets such as retirement accounts or life insurance policies which are payable to beneficiaries, or bank or brokerage accounts owned by joint tenants with right of survivorship, or “payable on death” or “transfer on death” accounts?

North Carolina has adopted the Uniform Simultaneous Death Act, which contains provisions not only for simultaneous death, but also for deaths in very close proximity to each other.  That Act provides that an individual who is not established by clear and convincing evidence to have survived another individual by at least 120 hours is deemed to have predeceased the other individual.  

That is, if two individuals (such as spouses) die within 120 hours of each other, each will be treated as if he or she were the survivor, as to his or her own assets.  If they were spouses, neither spouse would inherit from the other.

The 120-hour survivorship requirement does not apply if the “governing instrument” contains language dealing explicitly with simultaneous deaths or a common disaster, and such language is applicable under the facts of the case.

Consequently, your will or beneficiary designation, etc., can make provision to the contrary, in which case the personal provision which you have made in your will would prevail over the presumption in the Uniform Act.

For example, the husband’s will can provide that the wife will be deemed to have survived him if they die in a common disaster, and the wife’s will can provide for the opposite; that is, in a common disaster, she will be deemed to have survived him for the purposes of her will.  In that case, the wife would deemed to have survived the husband under both wills.

The will provisions alone would not control survivorship under other documents, such as a beneficiary or survivorship designation in a life insurance policy or an IRA, a payable-on-death account or other similar instruments.  In order to rebut the 120-hour presumption requirement, each “governing instrument” must contain the necessary language.

Without that language in the applicable governing instruments, the estates of two spouses who die instantly in an automobile accident would each pass as though each spouse predeceased the other.  That is, the husband’s assets would pass to the secondary beneficiaries under his will because of the presumption that the wife predeceased him,  and the wife’s separate assets would pass to the secondary beneficiaries under her will, and there would be similar results for life insurance beneficiaries, IRA beneficiaries, etc.  Without wills, each spouse’s estate would pass under the North Carolina Intestate Succession Act, as though the other spouse had predeceased them.

In case of multiple marriages, the secondary beneficiaries under the wills of each spouse may not mirror each other.  That is, the husband’s will might leave his assets, if his wife does not survive him, to his children, and her will might leave her assets to her children by a prior marriage.  The proper survivorship provisions would be very important to them in a simultaneous death situation.  Sometimes both spouses will agree to divide both estates between both families by the prior marriages, either equally or in unequal shares, in the event of a common disaster.

Incidentally, federal law provides that United States Bonds owned by co-owners who die under conditions where it cannot be established, either by presumption of law or otherwise, which co-owner died first, the bond would be the property of both equally, and payment or reissue will be made accordingly.  The North Carolina Simultaneous Death Act would determine who was the survivor, insofar as US Bonds are concerned.

If you want to control how your assets would pass in the event of simultaneous death or near-simultaneous death, instead of defaulting to the presumptions dictated by the state, you should make sure that your will and other governing instruments are consistent with your estate plan.