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I'm going through the process of creating a simple (my first) last will and testament.

I'm young with modest assets. I'm married with no children and live in the United States. I'd like to have something in place to make things as seamless as possible in the case of my death.

My spouse will be my first beneficiary, but I will also have other family as secondary beneficiaries in the case my spouse and I die at the same time.

While creating the will, I was considering the following scenario: my spouse and I are in an accident together. I die immediately, yet they live for some longer period of time (days/months). They eventually die as well.

I think the question boils down to: at what point does my will go into effect and pass my assets to them? Does it have to do with their condition (conscious/unconscious, mentally competent/incompetent)? Does this change based on who is the executor of the will?

It would seem a bit contrary to my wishes if I were to pass, my assets pass to my spouse, and then shortly to their second beneficiaries instead of mine, especially if it was always unlikely they'd recover. How do wills typically handle this edge case?

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    I imagine there are tax implications as well, if assets have to be inherited twice. Although considering the first beneficiary is your wife, this may be excepted. – Mast Dec 3 at 14:56
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    @Mast: The US only has estate taxes for estates over $5.3 million, so if OP has "modest assets" this is probably not a concern. – Nate Eldredge Dec 3 at 15:58
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    A will takes effect when you are no longer around to explain what you meant. Don't take chances. Get expert advice: pay a lawyer to do it right. – PJB Dec 3 at 17:32
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    @NateEldredge+ starting last year (2018) TCJA doubled the threshold to $10m plus inflation ($11.2m for 2018, $11.4m for 2019, I haven't seen 2020 update yet). Like many TCJA provisions this is scheduled to expire in 2026 and revert to prior law, but there will almost certainly be pressure to extend it. And as Mast noted, US estate tax excludes all amounts going to a (surviving) spouse. – dave_thompson_085 Dec 3 at 21:23
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    I just wrote a will and did something similar to what you want, however, I live in Sweden so it might differ from the US. We have something called "inheritance with the right to use", which basically means that my spouse can use the things for as long as she is alive, but when she dies the things are given to my heirs and not hers. She can't change that in her will either. The legal wording was kind of tricky though, so I would suggest contacting a lawyer to get it done correctly. – Pphoenix Dec 4 at 10:31
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Wills typically handle this by specifying a survivorship period. Such a clause may say, in effect, "I leave all my assets to my spouse, provided they survive me by at least 30 days, and otherwise to beneficiaries X,Y,Z." That way, if your spouse dies shortly after you, your assets go to X,Y,Z, rather than going to your spouse and then to their beneficiaries.

Another issue this avoids: suppose you are in an accident together, and by the time rescuers arrive, you are both dead. Without a survivorship period requirement, courts might have to try to determine whether one of you survived a few seconds longer than the other, in order to decide whose beneficiaries get the assets. That could be difficult and error-prone, not to mention gruesome and upsetting to loved ones. But with such a requirement, it's not necessary.

The linked article notes that in many jurisdictions, if you don't specify a survivorship period, there may be a statutory period that applies automatically.

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    Of course with modern medicine the spouse can end up in a vegetative state for years on end while the inheritance is used up to no benefit at all. So hard to consider all circumstances. – user3067860 Dec 3 at 15:54
  • Which is why you should have a living will (and communicate clearly with executor and relatives your wishes) regarding this exact scenario. – Jonathan Fite Dec 3 at 19:20
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    In the UK, if it is uncertain which order members of a group died in, they are considered to have died in descending order of age. In the US, a lot of states use the [Uniform Simultaneous Death Act]. If there is no will or other provision, people who die within 120 hours of each other, each is considered to have predeceased all the others. – Richard Ward Dec 3 at 20:20
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    There should have been another link in my last comment: en.wikipedia.org/wiki/Uniform_Simultaneous_Death_Act – Richard Ward Dec 3 at 20:28
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    If the assets become the property of the spouse, the decedent's will no longer has any control over them. The spouse can spend it all or give it away, and upon the spouse's death, it's the spouse's will that determines where it goes. So if you really want a one-year survivorship period (which would be unusual; the linked article says they are normally less than 60 days), the spouse would have to wait a full year to collect. – Nate Eldredge Dec 5 at 2:48

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