One common scenario we encounter when helping a married couple with their estate plan is how to prepare if both spouses die at or near the same time.
While the likelihood of this circumstance is fairly low, there are ways to plan for it.
Most married couples plan to give their estate to their spouse, and then to their children if they outlive their spouse.
In fact, under Virginia law this is the default arrangement if you die without a will.
But what happens if you don’t outlive your spouse, and he or she dies within days of your passing?
Establishing A Period of Survivorship
One of the ways you can best prepare for a case of simultaneous death is by creating a period of survivorship in your will.
A period of survivorship is a clause in your will that requires a beneficiary to outlive you a certain number of days before they could inherit.
A period of survivorship could range anywhere from 5 days to 500 days, though periods of survivorship longer than about 60 days aren’t common.
By choosing this option, you raise your chances of making sure that your estate goes to whoever you name as alternate beneficiaries in the event your spouse dies within a short time of your passing.
A Period of Survivorship Example
For example, let’s say you were working on your estate plan and you left everything to your brother.
In addition to this, you named your favorite niece as your alternate beneficiary.
Here’s how things would work if you didn’t include a period of survivorship.
Let’s say you pass away and your brother dies 8 days later.
In this case, your estate would go to your brother’s estate, and succession of your property would follow the terms of his will.
This would happen because the courts would treat your brother as a living person immediately after your death and transfer your property through his will.
However, if you included a clause stating that your brother only inherits if he outlives you by 30 days, the outcome would be very different.
With your brother having died 8 days after you, your niece would receive your estate because she is the alternate beneficiary in your will.
Ultimately, a period of survivorship can help ensure your true intentions are carried out upon your death.
Name An Alternate Beneficiary
It’s a good idea to set up a period of survivorship if you name an alternate beneficiary.
An alternate beneficiary in your Virginia will is someone you name to claim parts of your estate in case primary beneficiaries aren’t able to.
If you have alternate beneficiaries, you substantially decrease the possibility of your estate going to the wrong place.
Most importantly, it gives your will’s executor a direct source of instruction to distribute your property to and fulfill your last wishes.
Your alternate beneficiaries need to survive you so make sure they are young and stable enough to be able to receive parts of your estate.
Guardianship of Your Children
Children are an extremely important aspect of estate planning.
With regards to the possibility that both you and your spouse die at the same time, it’s wise to make plans for the care of your children.
The best way to do this is to name someone as your child’s guardian.
When doing so, make sure to name someone you can trust will raise your kids the way you would want them to.
Whomever you name in your will have to present themselves in court and prove that they’re capable of living up to this role.
In most cases, judges will defer to your guardianship request unless there is a significant reason not to.
However, the better the candidate, the higher the likelihood the judge will permit the person you choose to be your children’s guardian.
If you and your spouse die at the same time, you should also select someone who can watch over the parts of your estate you pass down to your children.
In Virginia, minors who inherit through their parent’s will must have a property manager if the value of their inheritance exceeds a certain dollar amount.
Also known as a “property custodian,” the property manager you select will oversee your child’s inherited estate to make sure it’s being used properly.
Minors are generally ill equipped to deal with the realities of property and money management until they are older.
By wisely selecting the right property custodian, you can rest easy knowing that your child’s property is in good hands.
In Virginia, property managers function until the minor child reaches 21 years of age.
This is the default rule.
You also have the option of extending the age if you’re not comfortable with the idea of your child controlling the property at 21.
Making sure your estate goes to your chosen beneficiaries and ensuring that your minor children are raised well in your absence are the main priorities of your estate plan.
With this guide and a reliable lawyer working by your side, you should be well prepared to move forward with this aspect of your estate plan.