Published on:

Does Your Will Need a “Titanic” Clause?

If you are married or in a long-term relationship, your estate plan will likely name your partner as the principal beneficiary under your will or trust. But what if you both die in a common accident? The law in this area can get a little complicated.

California’s 120-Hour Rule

When a California resident dies without a will, the state’s intestacy law dictates the distribution of property. If you have a surviving spouse but no children, the spouse automatically inherits everything. If you have children, your spouse inherits all of your community property and splits any separate property with the children.

The intestacy law contains a 120-hour rule. This states that if a person fails to survive you by at least 120 hours, they are legally deemed to have predeceased you for purposes of determining inheritance. For example, say a married couple is in a car accident. The wife dies immediately but the husband is taken to the hospital and passes away two days (48 hours) later.

In this scenario, neither spouse had a will. Since the husband did not survive his wife by 120 hours, the intestacy law assumes the wife had no surviving spouse, and vice versa.

Simultaneous Death and Survivorship Clauses

But what if the spouses had wills? Most wills signed by married individuals do, in fact, contain language designed to address the possibility of simultaneous deaths. Some lawyers refer to this as a “Titanic clause,” after the famous disaster that tragically killed a number of married couples.

Such clauses essentially designate one spouse as the “first to die” in the event of a common disaster. This can have significant tax and probate consequences, depending on the particulars of the couple’s estate. Among other things, it ensures there is a clear path to inheritance for the couple’s other heirs.

A well-drafted will should also contain a general survivorship clause applicable to all named beneficiaries. This is similar to the 120-hour rule discussed above, although the length is typically longer, such as 30 days. So, for example, if your will has a 30-day survivorship clause, no person named will inherit from your estate unless they outlive you by that period.

Again, the purpose of such language is to prevent multiple, and potentially conflicting probates of the same assets. Let’s say a woman dies on March 1. Her will leaves everything to her daughter, who passed away on March 4. Without a survivorship clause in the mother’s will, her probate estate would pass to the daughter’s probate estate, which would in turn pass under the daughter’s will. This might not reflect what the mother actually wanted.

Need Help Making a Will?

Estate planning is all about anticipating these situations and preparing accordingly. While nobody can plan for every contingency, that is not an excuse to avoid making a proper will. If you need assistance from an experienced San Diego estate planning lawyer, contact the Law Office of Scott C. Soady today.

Contact Information