Many of us have heard the tragic story of spouses being killed in a common accident, or one spouse dying and the other following a couple days later.  Not only does the family need to grieve two losses, but the family must now handle two estates.

It gets more complicated than that.  Because two people have died, two estates come into issue.  However, the estates are complicated because in Ohio, spouses must survive each other by at least five days – 120 hours – to legally survive each other for inheritance purposes.  Survival by five days must be proven by clear and convincing evidence.  If the court does not find clear and convincing evidence of survival, the spouses are treated as dying simultaneously.

What does this mean?  This means that although literally speaking, one spouse died first, if the other spouse does not live for at least five more days, Ohio treats the spouses as dying at the same time, and each is considered to have predeceased the other.

Simultaneous death has a great impact on the probate process for both spouses.  Many spouses own joint bank accounts and name each other as beneficiary on life insurance policies, retirement accounts, etc.  Typically, these designations allow the asset to pass to the surviving spouse.  However, with simultaneous death situations, there is no surviving spouse (legally) – so those otherwise non-probate assets now become probate assets and are subject to probate proceedings.

However, simultaneous death can be beneficial in certain situations.  It is possible to extend the simultaneous death factor in your Will.  For example, you can leave all of your probate assets to your spouse, provided he or she survives you by at least 30 days (or any other length of time).  Why would you want this?

In most cases, probate estates are not opened and distributed within a short period of time after the person’s death.  It is not uncommon for asset distributions to occur several months later.

If a spouse must survive by only five days, the spouse may be entitled to receive the probate assets from the spouse that died first.  If the surviving spouse dies a week later, a second probate estate may need to be opened for the second spouse.  Assets pass from Spouse 1’s estate to Spouse 2’s estate, and then to the children or other beneficiaries.

However, if the first spouse’s Will required the other spouse to survive by at least 30 days, the second spouse does not meet that requirement.  In that case, the second spouse does not inherit anything from the first estate, and no second estate may be required.  Instead, the assets from the first estate could pass directly to the children or other contingent beneficiaries named in the Will or beneficiary designations.

Simultaneous death can be difficult for family members to comprehend.  In their mind, it is clear which parent died first, but legally speaking, both parents are treated as dying together.  But, you should consider whether it makes sense for your situation to require a longer survival requirement.