Common Disaster Provisions in Wills

By Cindy Hill

In the parlance of wills and insurance policies, a common disaster provision is language which directs how assets or proceeds should be distributed in the event that the owner of the property, and her co-owner or primary beneficiary, both die within a short time of one another. Common disaster provisions in wills create an alternative path for dispersing assets when spouses die together in an accident.

Statute

Most states have adopted the Uniform Simultaneous Death Act, which applies in the event that you and your spouse or other primary beneficiary die without wills, or with wills that do not have a common disaster provision. The Uniform Simultaneous Death Act was first adopted in the United States in 1940. It mandates that if two people die in such a way that it can't reasonable be discerned who died first, then each person's estate is distributed as if he or she had outlived the other person. Amendments to the statute have clarified that it is assumed by law that two people died simultaneously unless there is clear evidence that one survived the other for at least 120 hours.

Time Limits

The 120-hour time limit set by the Uniform Simultaneous Death Act can be changed by using an alternate provision in your will, which then supersedes the statute. Choose a time period less than six months for your common disaster will provision, advises Senior Magazine Online, as a longer delay could potentially result in negating the ability to pass property free of estate taxes to your spouse.

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Uses

One chief reason for writing a will is to specify to whom you want your assets to pass after your death. If those closest to you, to whom you would otherwise be leaving your estate, die near in time to you, your assets will be distributed by the probate court to potentially distant relatives or others on whom you did not intend to bestow your inheritance. One use of common disaster provisions is to allow you to name an alternative recipient if your intended beneficiary dies. This recipient can be another individual of your choosing, or could be a charitable cause or institution which you would like to benefit.

Taxation

The language of a common disaster provision in a will can have a significant impact on estate taxation. If the common disaster provision states that everything is left to your spouse if your spouse survives you, for example, with no specification of a time limit, then your spouse inherits your entire estate if she survives you by even one minute. The spouse's estate is then significantly larger as it is distributed to her heirs, making it more likely that it will trigger high estate taxation.

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References

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