Estate Plan Contingencies When You’re a Widow or a Widower

Dear Mr. Premack: Husband makes a Will leaving everything to Wife. However, she is the first to die. When he eventually dies, does his Will still pass everything to Wife’s estate, to be given to the people named in her Will? Or is there a different outcome? Thanks. – A.W.

In order to inherit from husband, wife must outlive him. Under the Texas statutes, she must outlive him by a minimum of 120 hours; otherwise she is treated as though she died before him. Often, the Will is written to expand that 120-hour minimum survival requirement to 30 days, 90 days or even 6 months.

If the named beneficiary does not live past the specified date, neither the named beneficiary nor her estate inherits. In your scenario, the assets do not pass to Wife’s estate. Instead, reference is made back to Husband’s Will, to see what contingency plan he provided.

His contingency plan may say something as simple as, “If Wife fails to survive me, I give my estate to my brother.” If so, brother inherits. But if the Will does not contain a contingency plan, Husband’s estate passes according to the laws of descent and distribution (for instance, to the children or their descendants, if any).

You must also note that, according to Texas community property law, each spouse starts out as owner of half the overall estate. In your scenario, when Wife died, she owned half of the couple’s community property. Her half would pass according to the instructions in her Will, or according to any legally binding survivorship agreements to which she was a party. Often legal action is necessary to determine to whom her share of the estate passed, even if that action is as fundamental as probating her Will so that her last wishes are fulfilled.

There is one variation on the scenario you proposed which, if followed, would result in Wife’s Will being important when Husband dies. For instance, her Will might say, “I leave all my estate to a trust for the benefit of my Husband, but when he dies the trust terminates and all remaining assets pass to my sister.” If so, Husband has the benefit of her estate for the rest of his life, but his Will does not control to whom the trust assets pass upon his death. Instead, according to her Will, the trust assets go on to her sister because they never actually became part of Husband’s estate.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, May 28, 2010

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