Simultaneous Deaths & Your Will: A Guide to Estate Distribution

Introduction

The possibility of partners or family members dying at the same time, such as in a shared accident, raises complex legal questions about estate distribution. In these situations, specific laws determine whose will applies, which can significantly impact how assets are divided among beneficiaries.

These legal principles, including survivorship rules, can lead to unintended outcomes, particularly for family provision claims in blended families where children from previous relationships could be accidentally disinherited. Understanding these complexities and seeking advice from an experienced wills and estates lawyer is crucial for effective estate planning and ensuring your final wishes are honoured.

How the Law Determines Death Order When Parents Die Together

Determining Order of Death: Legal Rules & Presumptions

When two people die at the same time, such as in a shared accident, and it is impossible to determine who died first, the law applies a rule of seniority. This legal presumption states that:

• The older person is deemed to have died first.
• The younger person is considered to have survived them.

This rule directly answers the question of whose will applies. Because the younger partner is deemed to have died second, their will governs the distribution of the combined estate.

Any assets the younger person was set to inherit from the elder partner’s will are first absorbed into the younger person’s estate and then distributed to the beneficiaries named in their will. This can create unintended consequences, particularly for blended families. Therefore, it is crucial to consult a wills and estates lawyer to ensure your estate planning reflects your specific wishes.

NSW Law: The Conveyancing Act 1919 & Survivorship

In New South Wales, the presumption of survivorship is formally established under legislation. Section 35 of the Conveyancing Act 1919 (NSW) dictates how to resolve situations where the order of death is uncertain.

This section specifically clarifies that, for the purpose of determining property titles, deaths are presumed to have occurred in order of seniority. As a result:

• The younger individual is legally deemed to have survived the elder.
• This provision is critical for managing jointly held property, as it ensures a clear and predictable outcome for the transfer of assets.

The 30-Day Survivorship Rule & Estate Distribution

Why a Beneficiary Must Survive the Will Maker by 30 Days

For a beneficiary to inherit from a will, they must generally survive the person who made the will, known as the testator, by a specific period. In New South Wales, this requirement is outlined in Section 35 of the Succession Act 2006 (NSW), which establishes a 30-day survivorship rule. This means a beneficiary must live for at least 30 days longer than the testator to receive their inheritance.

This rule is the default legal position and will apply automatically unless the will contains a contrary intention. A will can be drafted to:

• Specify a different survival period, whether shorter or longer
• Exclude the 30-day rule entirely

Consulting an estate planning lawyer is important to ensure the will accurately reflects your wishes and addresses various circumstances. This can help prevent unintended distribution outcomes.

Legal Consequences When a Beneficiary Dies Shortly After the Testator

If a beneficiary dies within the 30-day period following the testator’s death, there are significant legal consequences for the distribution of the estate. The law treats the beneficiary as if they had died immediately before the testator.

This means the intended gift or asset does not become part of the beneficiary’s own estate. For example:

• If a husband leaves his entire estate to his wife in his will, and the husband dies, but his wife passes away 25 days later, she does not meet the 30-day survivorship requirement.
• As a result, she is legally classified as having died before him, and the asset from his estate will not be transferred to hers.

Instead, the inheritance is distributed according to:

• The backup provisions in the husband’s will
• The laws of intestacy, if no backup provisions exist

Dealing with Joint Assets & Property Ownership

How Joint Tenancy Works When Owners Die at the Same Time

When two or more people who own property as joint tenants die at the same time and it is impossible to determine the order of death, the law provides a clear rule. Legal principles presume that the deaths occurred in order of seniority, meaning the older person is deemed to have died first.

As a result of this presumption:

• Any jointly held assets automatically become part of the younger person’s estate.
• For example, if parents die together in an accident, the interest of the senior deceased person reverts to the estate of the younger person.

This rule ensures there is a clear line of inheritance for the property.

The Difference Between Joint Tenants & Tenants in Common

The way property is owned significantly impacts how it is distributed after death. The distinction between holding property as “joint tenants” versus “tenants in common” is critical, particularly when owners die together.

The key difference lies in the rule of survivorship, which applies to joint tenants. This rule means:

Ownership Type	Rule of Survivorship & Inheritance
Joint Tenants	When one joint tenant dies, their share automatically passes to the surviving joint tenant(s). This share cannot be gifted to other beneficiaries through a will.
Tenants in Common	Each owner’s share is separate and distinct. This share can be passed on to beneficiaries of their choosing through their individual will.

Consulting a wills and estates lawyer is important to ensure your property ownership aligns with your overall estate planning goals.

What Happens to Gifts When a Beneficiary Predeceases the Testator

Understanding the Anti Lapse Clause & Section 41

When a beneficiary named in a will dies before the person who made the will, the intended gift can become complicated. Without specific legal provisions, the inheritance could return to the estate and be distributed in a way the will-maker never intended.

To prevent this, New South Wales law includes a built-in solution known as the anti-lapse rule. This principle is outlined in Section 41 of the Succession Act 2006 (NSW). The rule ensures that a gift intended for a beneficiary who has passed away does not simply vanish or fail.

When Gifts Pass to the Children of the Deceased Beneficiary

The anti-lapse rule automatically redirects an inheritance to the deceased beneficiary’s children. For example, if you leave a gift in your will to your child and that child dies before you, the gift will pass directly to your grandchildren, unless your will specifically states otherwise.

However, this rule does not apply in every situation. The inheritance may revert to your estate if:

• Your will contains a contrary intention, such as naming a backup beneficiary.
• The deceased beneficiary did not have any children.
• The gift was conditional, for instance, requiring the beneficiary to survive you by 30 days, and they did not meet that condition.

To ensure your assets are distributed exactly as you wish and to avoid unintended outcomes, it is important to consult a wills and estates lawyer who can help draft your will with clarity.

The Role of Intestacy Laws When No Beneficiaries Survive

Distribution of Assets When Someone Dies Without a Will

When a person dies without a valid will, their estate is distributed according to the laws of intestacy. These laws establish a predetermined order for how assets are divided among surviving relatives.

Typically, the estate is first inherited by the deceased’s spouse. If there is no surviving spouse, the assets are then passed down to their children.

However, the specific rules of distribution can vary between states and territories. Therefore, it is important to seek advice from a wills and estates lawyer to understand how these laws apply to your situation.

What Happens When All Beneficiaries Die Before the Testator

If every beneficiary named in a will dies before the will-maker, the will cannot be executed as intended. In this scenario:

• The executor must still apply for probate.
• The estate is then distributed according to the laws of intestacy, as if no will existed.

The estate’s assets will be distributed to the deceased’s closest living relatives in the order specified by law. If no eligible relatives can be found, the estate is ultimately transferred to the Crown.

This outcome highlights the importance of regularly updating your will and consulting a lawyer to include backup beneficiaries.

Why Engaging a Lawyer is Crucial for Complex Estate Planning

Expert Advice for Blended Families & Complex Structures

With family structures becoming more complex, particularly in blended families, obtaining expert legal advice is essential when preparing a will. The legal presumption that the younger partner dies second can lead to unintended consequences, especially for children from previous relationships.

If both partners die at the same time, the younger partner’s will governs the distribution of the combined estate. This means:

• If the younger partner’s will only names their biological children as beneficiaries, the children of the older partner could be unintentionally disinherited.
• An experienced wills and estates lawyer can identify these potential pitfalls and ensure your estate planning addresses the unique circumstances of your family, protecting all intended beneficiaries.

Preventing Unintended Outcomes Through Professional Estate Planning

A wills and estates lawyer can help you draft a will that ensures your assets are distributed exactly according to your wishes, even in complex scenarios. They can include specific clauses to override default legal provisions that may not suit your situation.

For instance, a lawyer can draft a will that:

• Excludes the application of the 30-day survivorship rule found in Section 35 of the Succession Act 2006 (NSW).
• Adjusts the required survival period to be shorter or longer than the standard 30 days.
• Clearly names backup beneficiaries to prevent gifts from failing if the primary beneficiary dies before you.

By having a professionally prepared will, you can account for various circumstances and prevent potential will disputes among your loved ones.

Conclusion

When partners die at the same time, legal principles such as the seniority rule and the 30-day survivorship period determine whose will applies and how the estate is distributed. These default provisions can lead to unintended consequences, particularly for blended families where beneficiaries from previous relationships might be unintentionally left out.

To ensure your estate planning accurately reflects your wishes and protects all your intended beneficiaries, it is vital to seek professional legal advice. Contact the experienced wills and estates lawyers at PBL Law Group for specialised guidance tailored to your unique family structure and achieve peace of mind.

Frequently Asked Questions