Estate Planning - Spouses with survivorship clause - could a named beneficiary "double up" on simultaneous death scenario?

Question

Lets say there is a married couple and they both have identical wills; with a survivorship clause along the lines of:

• I direct that the reside of my estate shall be paid, transferred and delivered to my spouse (xxx) for his/her own use... provided s/he survives me for a period of (30) thirty days.
• In the event my spouse (xxx) predeceases me or does not survive me for a period of (30) thirty days, then: give $10k to the church and split the remainder in equal shares to my children.

Questions:

• if both spouses have the same children and die at the same time, does the church get $10K or $20K ?
• if the church gets $20k; how would you change the will so the church get $10K total regardless who dies first and the time between the deaths.

Links to source would be greatly appreciated. Thanks.

Answer 1

if both spouses have the same children and die at the same time, does the church get $10K or $20K?

$20K.

if the church gets $20k; how would you change the will so the church get $10K total regardless who dies first and the time between the deaths.

There is nothing magic about it. You could do it with language such as:

In the event my spouse (xxx) predeceases me or does not survive me for a period of (30) thirty days, then: give $10k to the church and split the remainder in equal shares to, my children, provided, however, that only one gift shall be made from my spouse and I in the total amount of $10K allocated between the estates equally unless my spouse's personal representative and my personal representative agree to allocate this specific devise otherwise.

Answer 2

Nobody dies at the same time

In Australia at least - other jurisdictions may be different.

If it cannot be determined who passed away first, the deaths are deemed to have occurred in decreasing age order.

In your scenario, the older person's will takes effect as if the younger person were already dead.

If all of the assets of the couple are jointly owned, the younger person's will would never be triggered and the church would get $10k. If the younger person held separate assets, the church would get $10k from each.

How would I redraft it? I wouldn't; I'd hire a lawyer who specializes in probate.