Surviving the Common Disaster

120 hours.  That is how long a devisee or heir must out-live a decedent  to lay claim to an inheritance.  Die within that time frame, and it is considered a common disaster in estate planning terms.

Now let’s delve into the details.  For an heir (who takes if the decedent was foolish enough to die without a Will), the 120- hour rule is absolute.  For a devisee (a beneficiary under the Will), the 120- hour rule is only effective if the Will fails to address a survivor period.

Most well-drafted Wills contain a time-of-survivor period of 30 to 90 days.  If the devisee outlasts the survivor period, then he gets the bequest.  If he outlasts the survivor period but dies before he actually receives the bequest, then his estate receives the bequest.  If he dies before the end of the survivor period, however, he is treated as if he died before the decedent.

Sometimes a drafter gets a little sloppy, and then it’s chaos.  That is what happened on the nearly identical Wills of Vencie and Melba Beard, a married couple.  Each Will contained a clause that stated “if both my [husband/wife and I] die in a common disaster or under circumstances making it impossible to determine [who] died first …..I bequest [specified cash amounts to nine individuals]. “    Later in the Will was a provision that other individuals would take the property if the spouse failed to survive by 90 days.

Sure enough,   Vencie shot and killed Melba, and then killed himself less than 2 hours later.

The issue was whether the murder-suicide  was a “common disaster.”  If it was, then the 9 individuals took their bequest.  If it wasn’t, then the 9 individuals took nothing, and the estate passed to other beneficiaries.

The Texas Supreme Court got involved, and decided that  the Beards did not die in a common disaster because it was possible to determine who died first.  The 9 individuals took nothing.  Stephens v. Beard, opinion issued March 18, 2016

Writing a good Will is more challenging than it may appear.

Hammerle Finley Law Firm. Give us a call.  We can help.