What happens if my spouse and I both die at the same time in Texas?
- Common Estate Planning for Married Couples
It is common for married couples to create reciprocal estate plans that leave all probate assets to the surviving spouse. They may also hold their non-probate property as joint tenants with rights of survivorship and name each other as the beneficiaries of retirement accounts, individual retirement accounts, and life insurance policies. When one spouse dies, all assets are passed down to the surviving spouse. But what happens if a couple dies simultaneously, or if it cannot be determined who died first?
- The Uniform Simultaneous Death Act
To prevent the problems that are often caused by the simultaneous death of spouses, many states in the United States have enhanced The Uniform Simultaneous Death Act. This act ensures that each spouse will be treated as though they predeceased the other spouse, so long as the deaths fall between 120 hours (five days) of each other, unless a specific clause in the Will says otherwise.
- Simultaneous Deaths and Texas Law
Section 121.052 of the Texas Estate Codes states that “A person who does not survive a decedent by 120 hours is considered to have predeceased the decedent for purposes of the homestead allowance, exempt property, intestate succession, and the decedent’s heirs are determined accordingly, except as otherwise provided by this chapter.” The Code includes one exception in that the 120-hour rule does not apply if it would result in the escheat of an intestate estate to the State of Texas.
- Can I include a Simultaneous Death Provision in my Will?
Although the law provides a safety net for the simultaneous death of spouses, most people choose to include a provision in their Will addressing the possibility. This provision is commonly referred to as a “survivorship clause.” As the Testator of the Will, you can determine how you want a potential simultaneous death handled. For example, a Testator, might decide that if a beneficiary dies within thirty (30) days after (the Testator’s) death, they shall be deemed to have predeceased the Testator. One benefit to including a survivorship clause is that it also addresses situations wherein a non-spouse beneficiary dies shortly after the Testator.
- Non-Probate Assets and Simultaneous Deaths
Not all assets are considered probate assets. Such assets are typically called non-probate assets, meaning they pass to beneficiaries outside the probate process. Examples include things such as proceeds of a life insurance policy, assets held in a trust, and real property held as joint tenants with rights of survivorship. Many of these assets will also have a provision dealing with simultaneous deaths. Be sure to check with an experienced estate planning attorney to find out how a simultaneous death would impact the assets in your estate.