When discussing client’s Last Wills, I always discuss the possibility of a common disaster. I know it’s not pleasant, but it is a reality, and should be discussed. Why? Because you, the client, can, and should, have control over the disposition of your property. If the testator and the beneficiary die in a common disaster where it is impossible to determine who passed away first, or death occurs in close proximity of time, you can direct (in your Last Will) that you want the presumption of surviving your beneficiary. You may not always want this presumption, but most times you do. An example may clarify.
EXAMPLE: You prepare a Last Will and state that you want your vacation home left to your son, but if he were to predecease you, you would want it to go to your daughter. You want either of your two children to ultimately get the family vacation home. It has been in the family for several generations. You and your son, driving on the way to visit the vacation home are hit by the drunk driver. Death is pronounced for you on this day. Ten days later, in the hospital, despite the doctor’s best efforts, your son also passes. Where does the vacation home go? Who will inherit it?
ANSWER 1 – No Common Disaster Clause in Last Will: If there is no common disaster clause in the Last Will, your son’s estate would receive the house and then the question becomes … what does his will read? His Last Will (if he has one) will determine who ultimately gets the family vacation home … maybe it’s your daughter-in-law and not your daughter. Maybe this is an okay result, maybe not.
ANSWER 2 – With Common Disaster Clause in Last Will: With a typical common disaster clause, your daughter would get the vacation home, because it was your wish to leave it to her, if your son could not enjoy it and keep it in the family.
New York’s Estates, Powers & Trusts Law (“EPTL”) section 2-1.6 sometimes called the “Simultaneous Death Law” was modified several years ago in an effort to resolve this type of problem. It provides that in the event that the order of demise is relevant in the disposal of property, and no clear and convincing evidence that one individual survived the other by at least 120 hours exists, then that individual is deemed to have predeceased the other. Nevertheless, clients should address, this admittedly awful possibility, to insure that their ultimate wishes are carried out.
Aaron E. Futterman, CPA, Esq. is a partner in the law firm of Futterman & Lanza, LLP with offices in Smithtown, NY and clients throughout Suffolk, Nassau, Queens, Brooklyn, Bronx, Richmond, New York, Westchester and Rockland Counties. He concentrates his practice to Elder Law, Medicaid Planning, Medicaid Applications, Estate Planning, Probate, Estate Taxes, and Estate Administration.