Formalities Required When Forming Or Amending A Florida Revocable Living Trust
October 12, 2011
Estate Planning Lessons From The McCourt Saga
October 18, 2011

What Happens To An Estate Plan When Both Spouses Die In The Same Incident?

One of the most common disaster scenarios estate planning attorneys are presented with is the possibility of both spouses passing in the same incident.  Clients, understandably, want to know how their estate plan will be affected in the event of a common disaster.  Usually, the attorney will plan for this possibility by inserting survivorship clauses into the documents, which require that any beneficiary, including the spouse, survive the decedent by a definite period of time.  For example, if both of the spouses are involved in a car accident, one passing at the moment of the incident and the other passing at the hospital later that evening, both spouses would be treated as if they predeceased the other and their estates would be divided among their remaining beneficiaries according to their instructions.

What about incidents where it is impossible to determine which spouse died first?  This scenario may be governed by Florida Statute § 732.601, the Simultaneous Death Law.  The paraphrased text of the statute is as follows:

•    When title to property depends on priority of death and is appears that the persons have died simultaneously, the property of each person shall be disposed of as if that person survived the other.

•    When two or more beneficiaries are designated as successive survivor beneficiaries under another person’s disposition of property and it appears that the beneficiaries died simultaneously, the disposed property shall be divided into as many equal parts as there are successive beneficiaries and these parts shall be distributed to those who would have taken if each designated beneficiary had survived.

•    When it appears that two joint tenants or tenants by the entirety died simultaneously, the jointly held property shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them died simultaneously, the property will be distributed in the same proportion as the number of joint tenants.

•    When the insured and the beneficiary of a policy of life or accident insurance appear to have died simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.

While this statutory “gap filler” is certainly convenient, it is no substitute for a carefully constructed estate plan.  For example, it does not take into account instances where one joint tenant may have contributed more than 50% of the purchase price for a piece of property.  Something that is very common, especially in later-in-life marriages.  Under most circumstances, it is better to plan for these kinds of possibilities with a knowledgeable estate planning attorney.

If you have questions or need assistance establishing your estate plan, contact an Attorney in Jacksonville who can help you today.