Switch to ADA Accessible Theme
Close Menu
Fort Myers Estate Planning & Probate Lawyer
Free Confidential Consultation All Calls Returned The Same Day 239-333-4529
  • Facebook
  • Twitter
  • LinkedIn

What Are the Estate Planning Implications if My Spouse and I Die at the Same Time?


The recent death of former President George H.W. Bush came just seven months after the passing of his wife, former first lady Barbara Bush. It is actually not unusual for longtime spouses to die within months–or even days–of one another. In fact, doctors have even documented broken-heart syndrome, which is a “temporary heart condition that’s often brought on by stressful situations, such as the death of a loved one.”

But what happens to the estates of two spouses who die in close proximity to one another? For that matter, what happens if a married couple is killed simultaneously–such as in a car accident–and it is impossible to determine who died first? The answer to these questions depends on Florida law and the terms of each spouse’s individual estate plan.

Florida’s Simultaneous Death Law

Let’s start with the simultaneous death scenario. Absent a specific provision in a person’s estate plan or other “governing instrument,” Florida law directs that when “there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if that person survived.” What this means in plain English is that if you and your spouse die at the same time, then you are each presumed to have survived the other for purposes of your estate plan.

This may sound like a contradiction, but it actually makes sense if you think about it in practical terms. Say you and your spouse each have a will that leaves your entire estate to the other spouse. Under Florida’s simultaneous death rule, each of your estates assumes the other spouse died first, so your estates would then go to your alternate beneficiaries, such as your children. Absent this rule, each spouse’s estate would go to other spouse’s estate–effectively creating a legal paradox.

The simultaneous death rule also applies to life insurance policies. That means if you take out a policy on your own life and your spouse is the named beneficiary, in the event of a simultaneous death your spouse is presumed to have died before you. The policy benefits would then go to the alternate beneficiary you named.

Does Your Will or Trust Need a Survivorship Clause?

Now there are also situations where you may want to impose a “survivorship” requirement on a beneficiary to your estate, including your spouse or another family member. For example, your will might include language that says no beneficiary may receive a bequest unless they survive you by 30 days. Again, the reason for this is to avoid potential issues with multiple estates administering the same property.

Some states impose automatic survivorship periods, typically 120 hours (or 5 days) on all heirs and beneficiaries. Florida does not have such a rule. But you are still free to require a survivorship period in your will or trust if you wish, although it should typically not last more than 60 days.

A qualified Fort Myers estate planning lawyer can give you more specific advice tailored to your situation. Contact the Kuhn Law Firm, P.A., at 239-333-4529 to schedule a free consultation with a member of our estate planning team today.




Facebook Twitter LinkedIn