If the unthinkable happened and both partners were to die at the same time 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?
Fortunately, the law has a solution for this situation, even if it may not always make sense in the real world.
Who inherits if both partners die simultaneously?
The Succession Act 2006 (NSW) provides that if both partners die at the same time, the younger partner is deemed to have died second.
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.
Can Wills be affected by the period between the partners’ deaths?
When a person inherits assets from another person’s Will, but dies within 30 days after them, section 35 of the Succession Act deems one partner to be dead, although they are actually still alive.
The section states that a beneficiary of a Will must live 30 days longer than the testator in order to inherit. So if a husband and wife have mirror Wills and the husband dies 29 days after his wife, he 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 passed on to his beneficiaries.
Complex family structures require expert Will advice
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.
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