Survivorship Requirements in Your Estate Plan

A survivorship requirement means that beneficiaries can't inherit from you unless they live for a certain period of time longer than you do. In general, it's a good idea to include a survivorship clause in your will or trust.

Survivorship Periods in Wills and Trusts

A "survivorship period" is a standard feature of many wills and trust documents. A survivorship clause states that beneficiaries named in your document can't inherit unless they live for a specific amount of time after you die. This time is called a survivorship period, and commonly ranges from about five to 60 days. For example, a will might state that "a beneficiary must survive me for 45 days to receive property under this will."

It's unusual to see a survivorship period longer than 60 days. If a survivorship period is more than 120 days, it could jeopardize the estate-tax-free transfer of assets from a deceased spouse to the survivor. Federal estate tax isn't a concern for most people (more than 99.5% of estates don't owe any tax), but even without the tax consequences, a long survivorship period isn't necessary.

Survivorship Periods Imposed by State Law

If the will itself doesn't impose a survivorship requirement, state law might. (If the will does have a survivorship period, that's the one that will apply.) In many states, all beneficiaries are subject to a five-day (120-hour) survivorship period. The law applies to beneficiaries who inherit under wills, trusts, or state law (in the absence of a will).

Survivorship periods under state law generally don't apply to people who inherit under beneficiary designations (for example, because they're named beneficiaries of insurance policies or pay-on-death bank accounts). Survivorship periods generally don't apply to surviving co-owners when property is held in joint tenancy, tenancy by the entirety, or in other ways that give surviving co-owners automatic ownership of a deceased co-owner's share.

A survivorship requirement is in effect in most of the states that have adopted the Uniform Probate Code or the revised version of the Uniform Simultaneous Death Act.

You can make your own will, quickly and easily, using Nolo's Quicken WillMaker.

States With Automatic Survivorship Requirements

Why Have a Survivorship Requirement?

Survivorship requirement are designed to come into play in case of the simultaneous (or near-simultaneous) death of a will-maker and a major beneficiary—for example, a husband and wife. Such occurrences are extremely rare in real life, but the possibility worries a lot of people when they sit down to write their wills. Here's the worry: Your assets would pass under your beneficiary's estate plan, not yours.

Example. In her will, Sara leaves everything to her brother Tomas, and names her favorite charitable organization as the alternate beneficiary. Under normal circumstances, Sara's assets would pass to her brother at her heath. And if he were no longer alive at Sara's death, her assets would go to the charity.

But let's say that Sara dies, and then Tomas dies 10 days later. Without a survivorship period, he would inherit everything. The assets would then pass under the terms of his will—perhaps to Sara's no-good nephew—not to the charity that she named as alternate beneficiary. The family would also have the added financial burden of two probate proceedings (one for Sara's estate, another for Tomas's estate) before the assets could be transferred to their ultimate owner.

In the above example, if Sara's will contained a 30-day survivorship period, then nothing would go to her brother. Instead, her assets would pass to the charity, as she intended. Her estate plan, not her brother's, would determine where her assets ended up.

Getting Help and More Information About Wills

For most people, creating a will isn't complicated. You can use a program like Nolo's Quicken WillMaker & Trust. You also can hire an estate planning attorney in your state.

For more information about wills, visit Nolo's wills page.