- Estate Planning
- Probate
- 7 mins
Estate planning is often focused on who will inherit your assets. For most married couples, they will leave their entire state to their surviving spouse. Yet in the world of estate planning, you always have to take into consideration all possible worst-case scenarios that may occur. As we always advise clients, estate planning deals with possibilities, not probabilities. While unlikely to occur, you would rather have a plan that protects you in the event that something completely unexpected happens.
One scenario many families never consider is what happens if spouses die at the same time or as a result of a common accident or disaster. Unfortunately, tragic events such as car accidents, natural disasters, or medical emergencies can raise complex legal questions if deaths occur simultaneously, or so close in time that it cannot be established if one spouse survived the other.
In Massachusetts, there is a specific statute that governs this situation. Understanding the default rule, and how proper estate planning can override it, is critical to protecting your family and ensuring your wishes are carried out.
The Massachusetts Simultaneous Death Statute: The Default Rule
Massachusetts law addresses simultaneous deaths under Massachusetts General Laws c.190B Article II § 2-702, which is part of the Massachusetts Uniform Probate Code. The statute states in relevant part:
“(a) For the purposes of this code, except as provided in subsection (d), an individual who is not established to have survived an event, including the death of another individual, is deemed to have predeceased the event.”
Under this statute, an individual must be deemed to have survived another person in order to inherit from them. If a person does not survive the other, or dies as a result of common accident in which it cannot be determined who died first, then Massachusetts law treats that person as having predeceased the other individual.
In plain English, this law states that if it cannot be firmly established that one person survived another, then the law will assume that person died first. This has significant implications when it comes to determining who should inherit assets when a simultaneous death occurs.
As § 2-702 plainly states, the default rule provides an exception in subsection (d). This subsection reads in relevant part:
“(d) This section shall not apply if:
(1) the governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case;
(2) the governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event by a specified period; …”
This subsection (d) specifically grants you the authority to override the default rule, and build into your Last Will and Testament or Trust documents your own survival or simultaneous death language that fits your intentions or the goals of your plan.
What Does the Simultaneous Death Statute Look Like in Practice?
To understand how this works, consider the following real-life example:
A married couple, John and Mary, are involved in the same car accident and both pass away. Prior to the accident, both John and Mary executed Wills that left everything they own to their each other. However, due to improper drafting, the Wills did not include language addressing any survival requirements or simultaneous death situations, and as a result the default law under § 2-702 will prevail.
Under Massachusetts law, if it cannot be firmly established that Mary survived John (even by a short period of time such as just a few seconds or minutes), then Mary will be deemed to have predeceased John. As a result, John’s estate does not pass to Mary. Instead, it passes to John’s contingent beneficiaries named in the Will, such as children, other family members or friends, or charities. Had Mary and John both died without executing a Last Will and Testament, then their estate would pass pursuant to the Massachusetts Intestacy Laws. For a full overview of the Massachusetts Intestacy statute and what happens if you die without a Will, read our full legal blog here.
The same analysis applies for Mary’s estate, where John will have been deemed to predecease Mary. There are significant benefits to this clause, as it provides clarity for the surviving loved ones who might otherwise spend unnecessary time and money in determining how both estate assets should be distributed. It also eliminates a scenario where Mary’s estate must pass through probate, only to transfer all of her assets into John’s estate first, to then be distributed under the terms of John’s Will, and vice versa.
While this outcome may have a limited impact for married couples depending on any estate plan they may have in existence, at times it can have very unintended consequences that are not to be overlooked, and may result in assets passing to people that you did not intend. This is especially true if your estate passes in accordance with the Massachusetts Intestacy statute and you do not have an estate plan in place.
Why the Default Rule May Not Match Your Intentions
While the Massachusetts statute provides clarity for courts and estate administrators (such as the Personal Representative), it is intentionally rigid. It does not account for personal preferences, family dynamics, or fairness considerations. This is why creating an estate plan to account for all possibilities, no matter how remote they may seem, is essential to ensure your assets are left to exactly who you intend.
Without proper planning:
- Assets may pass to unintended beneficiaries;
- Family members may be disinherited entirely;
- Multiple probate proceedings may be required depending on how assets are titled;
- Disputes between families may arise.
How a Will or Trust Can Control Simultaneous Death Scenarios
Section 2-702 (d) grants you flexibility to override the Massachusetts simultaneous death statute in your Will or Trust by “expressly indicating that an individual is not required to survive an event,” or if the instrument, “expressly requires the individual to survive the event by a specified period.”
This means that you can decide:
- How long someone must survive you in order to inherit anything under the Will or Trust agreement;
- What happens if deaths occur simultaneously or as a result of a common disaster;
- Who receives assets if spouses, or other beneficiaries, die closely in time;
- Which spouse should be deemed to have survived the other for estate tax planning purposes. This is especially important when it comes to Credit Shelter (AB) trust planning, which is designed to reduce or potentially eliminate Massachusetts estate taxes.
At Lane, Lane & Kelly, we routinely include customized survival and simultaneous death clauses in your estate planning documents to avoid any uncertainty and unintended consequences.
How to Choose the Right Survival Clause for You
The mark of any good estate plan is that it should be unique to your specific circumstances, situation, goals, and challenges. Estate planning is never a one-size-fits all solution. As a result, it is best to discuss your options with an experienced estate planning attorney before selecting the right survival language for your plan.
That said, it is typical for most Wills and Trusts to include survivor and simultaneous death language that is based on a beneficiary surviving the decedent for a set period of time in order to receive anything under the Will or Trust. Most plans will set this survival period at 30 days, but can be customized based on your circumstances or preferences. This means that in order for any beneficiary under the Will or Trust to receive anything, they must survive the decedent by more than 30 days. A standard survival clause in a Trust could look like the following:
"In the case of any person who must be living upon the occurrence of a particular event in order for such person to participate as a beneficiary and/or to receive any distribution of trust property hereunder, such person shall not be deemed to be living upon the occurrence of such event if such person shall die within thirty (30) days thereafter."
By incorporating a specified time period that a person must survive beyond the decedent, your plan will:
- Eliminates ambiguity in common disaster situations;
- Prevents assets from passing briefly to a spouse’s estate and then being redirected again;
- Reduces probate complexity and administrative costs;
- Ensures assets pass cleanly to the next intended beneficiaries
If a beneficiary does not survive the required 30-day period or whatever period is set in the instrument, they are treated as having predeceased the decedent. This provides clarity and predictability for loved ones, and aids in a smooth administration of the decedent’s estate.
It is also important to note that if your plan utilizes a Credit Shelter Trust (sometimes referred to as a bypass trust or AB trust structure) to aid in the reduction or potential elimination of Massachusetts estate taxes for married couples, then your survival clause must include additional considerations. In these types of trusts, this clause will likely specify that in a common disaster scenario, the spouse with the larger net estate should be deemed to have predeceased the other spouse. This is done to ensure that the Credit Shelter Trust, and the subtrusts that it creates, are adequately funded. This ensures that the tax-efficient trust structure is preserved even when both spouses die as a result of the same accident.
Expect the Unexpected: Why Comprehensive Planning Matters
Simultaneous death planning is important for everyone to ensure that your assets are distributed exactly as you intended. Without clear planning in place, then Massachusetts Intestacy law will determine who will inherit your hard-earned assets.
While no one likes to think about worst-case scenarios, proactive planning is one of the greatest gifts you can give your family. Addressing simultaneous death and common disaster situations in your estate plan provides certainty, protection, and peace of mind.
If you have questions about how Massachusetts law applies the simultaneous death statute, and whether your current estate plan adequately addresses these risks, contact our experienced estate planning attorneys today.
This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this blog you understand that there is no attorney client relationship between you and Lane, Lane & Kelly, LLP.