If the unthinkable happened and both partners were to die at the same time (say in a plane or car crash) what happens with regard to their Wills?

In most cases, parents would leave their estate first to their spouse, then to their children. But what if they have children from previous relationships? Or if they are childless, and the Will of one spouse directs their estate to go to her parents, while her partner’s Will directs that their estate go to his siblings?

This is an increasingly common scenario with more people having blended families including children from different relationships.

Fortunately, the law has a solution for this situation, even if it may not always make sense in the real world.

Determination of beneficiaries when partners die simultaneously

The Succession Act 2006 provides that if both parents die at the same time (e.g. in an accident), the younger partner is deemed to have died second, and their Will applies.

This means the younger partner would inherit anything left to them by the older partner and the beneficiaries of the younger partner’s Will are entitled to the estate.

Wills can be affected by the period between the deaths of the partners

When a person inherits assets from another person’s Will, but dies shortly after them, section 35 of the Succession Act deems one partner to be dead, although they are actually still alive.

For example, if a husband lives for 29 days after his wife is killed in a car crash, leaving all his estate to her in his Will, because she does not outlive him by 30 days as required by the Succession Act, she is legally classified as having died before him.

The section states that a beneficiary of a Will must live 30 days longer than the testator in order to inherit. So the husband who died 29 days after his wife is classified by law as having been dead for those 29 days, even though he was actually still alive.

If, however, the husband lived more than 30 days after his wife died, he would inherit her estate, which would then be added to his will and be passed to his beneficiaries.

Complex family structures require expert Will advice

With family structures becoming ever more complicated, it is prudent to get legal advice when drawing up a Will. A solicitor can identify the potential pitfalls of a Will in the context of your particular circumstances. They can also ensure that if both partners were to die at the same time, their estate would be distributed according to their wishes.

For example, a lawyer can draw up a Will that states if both parties die at the same time, section 35 of the Succession Act does not apply. Or they can make the out-surviving period longer or shorter.

Here to Help

Contact us for advice and assistance with all aspects of drawing up your Will.