For many couples, making a Will is about deciding what happens to their home, savings and other assets if one of them dies. But there is another situation that is important to consider: what happens if both spouses or partners die at the same time, or in circumstances where it is impossible to establish who died first?

This can be particularly important for couples with children, significant assets or property.

The good news is that your Wills can be carefully drafted to deal with this situation and provide a clear outcome for your family.

What happens if we die at the same time?

Imagine a married couple who are involved in the same accident and both die. If there is no reliable evidence establishing who died first, NSW law contains a presumption about the order of death.

Under section 35 of the Conveyancing Act 1919 (NSW), where two people die in circumstances making it uncertain who survived, their deaths are presumed, for purposes affecting the title to property, to have occurred in order of seniority. In other words, the younger person is presumed to have survived the older person.

However, this is not necessarily the end of the question. The wording of your Wills can be extremely important.

Why a survivorship clause can matter

The Succession Act 2006 (NSW) generally provides that where a beneficiary dies within 30 days of the Will-maker, the Will operates as though that beneficiary had died immediately before the Will-maker, unless the Will provides a contrary intention.

A properly prepared Will can therefore contain a survivorship provision specifying how long a beneficiary must survive before receiving an inheritance.

For example, a couple might decide that if one spouse survives the other by less than 30 days, the surviving spouse is not to inherit. Instead, the deceased person’s estate may pass directly to their children or other nominated beneficiaries.

This can avoid assets passing from one spouse’s estate into the other’s estate, only to then be distributed again.

The appropriate survivorship period will depend on your circumstances and should be discussed when your Will is prepared.

What happens to our house?

It is important to understand that not everything you own necessarily passes under your Will.

For example, if a house is owned by spouses as joint tenants, it will generally pass automatically to the surviving joint tenant rather than under the deceased person’s Will.

If both owners die, however, determining the order of death can become important. The ownership structure of the property and the circumstances of the deaths need to be carefully considered.

Property owned as tenants in common is different because each person has a separate interest, which can form part of their estate.

This is one reason why making a Will should not simply involve signing a standard document. Your solicitor should consider how your assets are actually owned.

What about superannuation and life insurance?

Superannuation and life insurance also require particular attention.

Superannuation death benefits and life insurance proceeds do not necessarily form part of your estate. Whether they are paid to your estate or directly to another person can depend on the relevant fund, policy and nominations.

As a result, making a Will does not necessarily determine who receives all of your superannuation or insurance.

Your Will and your beneficiary nominations should be considered together.

What about trusts and companies?

Assets associated with a family trust or company may also be treated differently from assets that you personally own.

For example, a person may control a family trust without personally owning the trust’s assets. Similarly, a company is a separate legal entity and its assets are generally not personally owned by its shareholders.

This means your solicitor may need to consider your role as trustee, appointor, director or shareholder when preparing your estate planning documents.

Making sure your family knows what happens

A well-drafted Will should do more than simply say, “everything to my spouse.”

It should also answer the next question:

“What happens if my spouse does not survive me?”

For a couple with children, this might mean providing that if both parents die, their children ultimately inherit their estate. There may also be good reasons to consider testamentary trusts, particularly where children are young or there are substantial assets.

The important point is that you do not have to leave the outcome to chance.

Here to Help

If you and your spouse are considering making Wills, contact us now for free no-obligation telephone advice about what should happen if one of you dies or if you both die together or within a short period of one another.

A carefully drafted estate plan can give you confidence that your wishes are clearly recorded and your family has a clear path forward.