Survivorship Provisions in Estate Planning

July 21, 2021

Most wills and trusts contain language pertaining to survivorship requirements. These survivorship provisions require a beneficiary to outlive the creator of the will or trust by a predetermined amount of time. The amount of time required varies.

You may wonder - why would invoking a survivorship provision be necessary? The main reason is to preserve the decedent’s estate so that it will end up distributed as intended. To illustrate using an example:

Mary and her sister, Ava, die in a plane crash. Mary’s will left her entire estate to Ava. The contingent beneficiary was their brother Al. Ava’s will leaves everything to a charity across town. What does Al inherit?

It depends on whether Mary’s will contains a survivorship provision. If her survivorship provision states that a beneficiary must survive her for 45 days, then Ava does not inherit from Mary, Al gets everything. If her will states that no survivorship is required to inherit under her will, then all of Mary’s assets pass to Ava’s estate. Since Ava left everything to a charity across town, Al gets nothing. If Mary died without a will, meaning she died intestate, then Maryland law imposes a 30-day survivorship provision on intestate estates. The laws of intestate succession would determine who inherits from Mary.

To prevent the decedent’s assets from passing to another beneficiary’s estate upon simultaneous death, survivorship provisions are often included in estate planning. The survivorship period is typically between 5 and 120 days. Most attorneys advise clients not to exceed a 120-day requirement in case the estate becomes large enough to trigger estate taxes because it could jeopardize the transfer of assets between spouses tax-free.

It can often be difficult in simultaneous death situations to determine who died first. The Unform Declaration of Death Act defines “death” as occurring at the moment when an individual sustains either (1) irreversible cessation of respiratory functions; or (2) irreversible cessation of all functions of the entire brain, including the brain stem.

Once it is determined that death according to the above definition has in fact occurred, then next question is to determine when that death occurred. At that point, reviewing the applicable survivorship provisions determines how the estates are to be distributed. As you can imagine, under certain fact patterns, these situations can be very complex, even frustrating.

The estate planning attorneys at Stouffer Legal in the Greater Baltimore area can discuss survivorship provisions during your estate planning sessions to help you make an informed decision on whether to include one and the duration that would be best. Estate planning is more than signing a few documents, a range of issues like survivorship provisions need to be carefully considered and discussed. You can schedule an appointment by calling us at (443) 470-3599, emailing us at office@stoufferlegal.com, or register for an upcoming free webinar using the link below:

https://attendee.gotowebinar.com/register/8597191784494950923

https://attendee.gotowebinar.com/register/1686355484239383053

https://attendee.gotowebinar.com/register/2257699109627415311

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