How to protect assets from being passed to a beneficiary in a will when they are likely to die soon also

Question

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?

Answer 1

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.