Reciprocal Wills and Simultaneous Deaths

Posted by Winifred "Wini" Cannon | Nov 17, 2020 | 0 Comments

 

What is a reciprocal will?

Generally speaking it's when a husband and wife are on one accord and they share the same assets and if one predeceases the other the surviving spouse takes it all. In other words, in the wife's will she's going to give everything to her husband and in the husband's will he's going to give everything to the wife. There's a situation that we're going to call the “Titanic”. When people were going down many of the women decided not to abandon their husbands and get on the rowboats. The women could have been saved but many of them stayed behind with their husband and they both perished.

The Importance of Defining Survival

 When I write a will for someone I always have a section in there that talks about survival. Because if you don't define survival then you have a great dilemma when you cannot determine who died first. Therefore you need to have a survival clause or you need to look to see if your state has some uniform acts that will interpret who died first. You can actually define it if you want to. You can just say, "If we are in an accident together, we are going to agree that the husband went first or wife went first." You could do that but that's tricky and that's hard to get people to decide upon.

Using Time Periods (The Less Morbid Approach)

I like using time periods such as the last person who survives 60 days or who died first from the time of the will. That way you can have a cut off point. Because even if it cannot be factually determined as to when the person died you can say that they have to survive 60 days - or whatever day you want, whatever, you could say 60 days, 90 days, 120 days, it doesn't matter. You could even say 30 days.

So you set a time period and then you say at the filing of the will or at the probating of the will, whichever is earlier. That way if your date of death was January the fifth then they have to prove that the husband lived 60 days after the wife did so that he could be determined as the one who survived. You could go that far. So if the person died a day after then that would mean that you are the person who actually survived. So, it generally doesn't happen that people die at the same time but it's possible and it's a plausible event to contemplate, particularly if you all want to do your distributions to each other. Because you don't want your will to be tied up into probate and there's a contest as to what will should take control.

The Lesson

Think about the ways that when you talk to your attorney about drafting a will, if you want you and your husband to sit down and think about, what you're going to define survival as and if you want to say a person died first you can do that. But before you make that ultimate decision I would advise you to get the tax consequences of basically determining who would be better off with the tax savings if you elected one spouse over the other.

About the Author

Winifred "Wini" Cannon

Winifred “Wini” Cannon knows how business owners may be impacted when retirement, incapacity, or death occurs without a good plan in place. One example that is very common is in the instance where one partner dies leaving the other trying to stay in business complicated by the...

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