No one likes drafting a will while picturing a shared car accident or a plane going down with both spouses aboard, but that unlikely scenario is exactly why a simultaneous death clause belongs in most married couples' estate plans. Without one, married couples leave a genuinely difficult legal question to a default statute that may not reflect what either spouse wanted.
The Default Rule Without a Clause
New York, like most states, has adopted a version of the Uniform Simultaneous Death Act, generally found in EPTL 2-1.6, which provides that a person who is not shown by clear and convincing evidence to have survived the other by 120 hours is treated as having predeceased, so each spouse's property passes as though the other spouse had died first. In practical terms, this can mean each spouse's estate passes as if they were the survivor, so jointly owned property or life insurance proceeds may end up split between both families' heirs rather than flowing entirely to one side.
Why Couples Draft Around the Default
Many couples prefer a different outcome. If the couple's estate plan favors keeping combined assets on one side of the family, for example when there are children from a prior marriage, a will can override the statutory default with explicit language stating that, for purposes of that particular will, one spouse is deemed to have survived the other in the event death cannot be sequenced. This is not about predicting who would actually die first. It is about choosing, in advance, how ambiguous or truly simultaneous deaths get resolved on paper.
- Confirm whether jointly held assets, retirement accounts, and life insurance beneficiary designations align with the clause in the will
- Decide together which spouse's estate plan should control if death cannot be sequenced
- Coordinate the clause with any survivorship period elsewhere in the will
- Review the clause after a divorce, remarriage, or blended family change
- Remember beneficiary designations outside the will are not automatically controlled by this clause
A Small Clause With Outsized Consequences
Because a simultaneous death clause only matters in the rare case where sequencing genuinely cannot be determined, it is easy to treat as boilerplate. But for couples with significant jointly held property, blended families, or specific bequests meant to stay within one family line, the clause can determine which relatives inherit. Our attorneys review this alongside every other coordination point when preparing wills for married couples.
If your will does not address what happens if you and your spouse die together, or you are not sure it says what you intend, we can help. Call Schwartsman Law Group at +1 212 518 3868 or schedule a free consultation today.
