Recently, a friend mentioned a book she was reading in which parents of adult children die in a tragic auto accident. Each parent had a will naming the other as the beneficiary, as expected, but, as it turns out, each left very different instructions should the other spouse precede them in death. In this case, one parent divided everything 50-50 between the two adult children; the other left everything to only the son, nothing to the daughter. As the story unfolds, the EMTs confirm that one parent died at the scene, and the other died on the way to the hospital. An excellent foundation for a work of fiction, but in real life, this is the perfect setup for a lifetime estrangement between siblings.
While the chances of both parents dying simultaneously are slim, it happens. Car accidents, plane crashes, and even natural disasters can create a situation where inheritances can literally rely on “who died first?”. Because of this, particularly for parents of young children, there are unique legal and practical challenges.
Some things to consider when parents die simultaneously:
Simultaneous Death Laws (Common Disaster Rules)
Ohio, like most states, follows a version of the Uniform Simultaneous Death Act (USDA). This act applies when individuals die at the same time, treating the deaths as if one predeceased the other, unless the governing documents specify otherwise. For joint owners with right of survivorship, if it’s impossible to prove one survived the other by 120 hours (about five days), the property is divided in half as if each survived by that period. However, a will or other legal document can override this, specifying a different survival period or explicitly addressing common disaster scenarios.
Common Disaster Clauses in Estate Plans
An experienced estate planning attorney can ensure your will or trust includes a Common Disaster clause that states:
- Who is deemed to have survived
- How assets should be distributed
- Whether distributions go directly to children, contingent beneficiaries, or charities.
For example, a clause such as the following could be included: “If my spouse and I die in a common disaster, I shall be deemed to have predeceased my spouse for all purposes of this will.”
If your plan doesn’t include the above directives, state law governs, which might not match your wishes.
Impact on Children and Guardianship
If both parents die at the same time, the guardian named in their will takes effect. If no guardian is named, the court appoints one, which can cause delays, disputes, or even result in foster placement while things are sorted out. (Note: always name a primary AND backup guardian.)
Estate Administration Challenges
- Without clear survivorship instructions, assets may need to be split proportionally between families, particularly if it is a blended family.
- Two estates may need to be opened and administered simultaneously.
- Executors must coordinate to avoid duplication or double taxation.
How to Make Sure You Take the Proper Steps
Working with an estate planning attorney, you should discuss the following:
- Having a mirror will with coordinated clauses
- A joint revocable trust with a built-in survivorship period (usually 30-60 days)
- A common disaster clause covering guardianship, pet care, and asset division.
- Letters of instruction for personal wishes.
Parents should consider all possible situations, even as remote as both of you dying simultaneously. When creating your estate plan, why not make sure you cover ALL the bases and not leave anything to chance? You certainly don’t want to risk having the state step in and make decisions about your young children, nor do you wish to create conflict among your adult children and other loved ones.
Call me to schedule a consultation to discuss your unique situation and how we can ensure your loved ones are protected. Please call me at 513-399-7526 or visit my website at www.davidlefton.com.