What happens if we die at the same time? – Succession planning upon simultaneous deaths

A common question we are asked by clients who are making a Will is: “what happens if we die at the same time?” or “what happens if we die in the same accident?”. This can refer to the simultaneous death of spouses or business partners or even beneficiaries.

The order in which married couples die is an important consideration, particularly in cases of blended families where one spouse’s Will may not mirror that of the other.

The simple answer to this question is that the Will of the first to die takes first effect.

Depending on what the Will of the first to die says, their estate may pass to the second to die or may bypass the spouse and go to children or step-children.

Whilst the order of death will not be relevant where the Wills mirror each other’s, the order of death will be particularly relevant if the Wills of couples are not identical. The order of death may create an injustice because the parties may have anticipated that the younger person would survive the older person and have made Wills accordingly.

In some cases it may be possible to determine the order of the deaths if one or more were alive when found or hospitalised before they passed away. However, determining which person passed away first will be more complicated where both parties passed simultaneously.

In the situation where both parties died simultaneously in an accident or were found deceased together then the legislation deems that the oldest person died first. This has obvious effects on how the Wills of the individuals are treated as well as any business succession agreements are interpreted. This needs to be taken into consideration when succession planning, rather than simply assuming that the older spouse/partner will pass away first.

One of the ways to overcome this sort of difficulty is to provide in Wills that for example, “I leave everything to my Wife if she survives me by 30 days”. This is known as a “Titanic clause”. Generally, if people are going to die from an accident they will do so within that short period of time. That avoids the confusion that might arise through simultaneous or uncertain order of death and also avoids the need to pass everything from one estate to the estate of another person who has already died.

If you have any questions in relation to succession planning upon simultaneous deaths or need to update your Will to allow for this situation, please contact us on 3870 8244 to discuss your succession planning needs.

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