Imagine a testator dies, and their sole beneficiary dies two weeks later without having changed anything about their own estate plan. Without careful drafting, the inherited assets now pass through the beneficiary's estate, get distributed under that person's will or intestacy rules, and the family may end up probating two estates back to back for the same property. A survivorship period clause exists to prevent exactly this outcome.
What a Survivorship Clause Requires
A survivorship clause conditions a beneficiary's gift on outliving the testator by a specified period, commonly thirty, sixty, or ninety days, rather than simply being alive at the moment of death. If the beneficiary does not survive that full period, the gift is treated as though the beneficiary predeceased the testator, and passes to the alternate beneficiary the will names — or, if the will is silent and the beneficiary was the testator's child, grandchild or sibling who left issue, to that issue under New York's anti-lapse statute (EPTL 3-3.3), and otherwise into the residuary estate. This builds on New York's statutory default: under EPTL 2-1.6, a beneficiary not shown by clear and convincing evidence to have survived the decedent by 120 hours is treated as having predeceased, and a will clause simply lengthens that period to thirty, sixty, or ninety days or more.
Why the Clause Matters in Practice
Survivorship clauses solve a real administrative problem. Estates involving elderly beneficiaries, beneficiaries in poor health, or family members who might reasonably die close in time to the testator benefit from a defined buffer period, because it avoids the expense and delay of running assets through a second estate almost immediately. It also lets the testator control who ultimately receives the property rather than leaving that decision to the deceased beneficiary's own estate plan, or lack of one.
- Common survivorship periods run thirty, sixty, or ninety days, sometimes longer
- The clause should apply consistently to specific bequests and the residuary estate alike
- Each gift subject to a survivorship period should name an alternate beneficiary
- Coordinate the period with any simultaneous death language elsewhere in the will
- Longer periods reduce double administration risk but slightly delay final distribution
Choosing the Right Length
There is no single correct survivorship period, but the clause should reflect the testator's actual priorities. A period that is too short defeats the purpose, while an unreasonably long period can delay distributions to beneficiaries who clearly did survive. Coordinating this clause with beneficiary designations on retirement accounts and life insurance, which are not governed by the will, is equally important. We walk through these coordination points whenever we prepare wills for clients.
If your will does not include a survivorship period, or you are unsure how it interacts with your other beneficiary designations, our attorneys can review your full plan. Call Schwartsman Law Group at +1 212 518 3868 or schedule a free consultation.
