What happens with estate when husband and wife die together?

Timothy: I heard that in the state of Florida, if a husband and wife die simultaneously, the husband always dies first. What is the legal ramifications of that?

Attorney Tom Olsen: No, that's not true. That's some kind of rumor or something. Timothy, first of all, remember there are situations where they're in a car wreck, the husband dies instantly and the wife dies two hours later. In fact, the wife has survived the husband for all legal purposes.

There could be a situation where a husband and wife are in a plane and the plane goes down, they definitely died simultaneously. What would happen is, let's say they really died simultaneously in a plane wreck, what would happen would be that the estate would literally be divided in two, and one half of the estate would be governed by what the wife's will says and one half would be governed by what the husband's will says. Usually, those wills say the same thing but occasionally they don't. Timothy, with that said, tell me what's going on with you?

Timothy: My wife has children and I have children. If I die everything's left to my wife and if she dies everything's left to me, and then it's left to our children because they were grown when we met.

Attorney Tom Olsen: When you say your children, do you mean all of them? Your kids and her kids?

Timothy: No. If I die first, everything goes to my wife, then when she dies everything goes to her children. If she dies first, everything goes to my children after my death.

Attorney Tom Olsen: I got you. You're one of the rare circumstances where in fact your will does say something-- You have different wills, different potential outcomes. In a sense there's kind of the winner gets all.

Timothy, I would still say this, if you guys went down in a plane wreck and you died simultaneously, your estate would be split in two, the home, bank accounts, you name it, and half would go to your kids and half would go to her kids.

Timothy: Okay, I got you.

Attorney Tom Olsen: You're very welcome. All right, Timothy, thank you. By the way, Chrissy, that reminds me that this is a situation where if I was doing Tim's will--

Attorney Chris Merrill: I know what you're thinking.

Attorney Tom Olsen: You know where I'm going with this?

Attorney Chris Merrill: I do.

Attorney Tom Olsen: It would say something like this, "If my wife survives me-

Attorney Chris Merrill: By 30 days.

Attorney Tom Olsen: -by at least 30 days, I leave everything to her." Because what Tim doesn't want is to be in a car wreck, he dies instantly, she dies five hours later and now everything is going to her kids. I would add language that says she's got to survive him by at least 30 days for that to happen.

Attorney Chris Merrill: Exactly.

Attorney Tom Olsen: 95% of the wills that we do for the husband and wife, their wills are mirror images of each other, so it doesn't really matter which one passes away first, the result is going to be the same eventually. Occasionally, just like Tim, 5% of the time we do a will where the husband's saying they're leaving everything to each other, but the husband's will says, "If my wife dies first, everything is going to my kids." Her will says, "If my husband dies first, everything is going to my kids." It's survivor take all kind of thing.

Facilitator: Two minutes [unintelligible 00:03:21]

Attorney Chris Merrill: Sometimes that is what they want. The important thing is that they are consulting an attorney to know that their wishes and goals are being planned. You're right, sometimes it's survivor take all, other times it's not and that's where we as attorneys or other estate planning attorneys can help you to make sure, with blended families in particular, that we are accomplishing your goals for when you both pass away.

Attorney Tom Olsen: We're running out of time but I want to get this important point in. Even if they've got children from previous marriages and they say, "All goes to each other but when the second of us passes, everything goes equally across the board to all of our kids," I've got to tell the husband, "If you die first, you need to understand your wife could go change your will." Sometimes the way we handle that as a husband, I say, "Look, you've got an IRA. Name your children as a partial beneficiary of your IRA, so that when you pass away, no matter what happens down the road, your kids-

Facilitator: One minute.

Attorney Tom Olsen: -have got something from your estate.

Attorney Chris Merrill: Exactly.

Attorney Tom Olsen: Even if your wife changes the will at a later date."

Attorney Chris Merrill: Correct. That's why it's really important to have that consultation with an attorney so that you know what your plan is, including what you just stated.

Attorney Tom Olsen: When they're coming to see lawyers, we've seen anything and everything. We know the options for people to get it done in a way that meets their needs and we'd love to help them at the Olsen Law Group.