Everyone is likely familiar, at least to some extent, with the popular TV show “Survivor.” According to Wikipedia, “The show features a group of contestants deliberately marooned in an isolated location, where they must provide food, water, fire, and shelter for themselves. The contestants compete in challenges for rewards and immunity from elimination.”

But in a probate setting, survival comes into play in a different way. Typically, a beneficiary or heir needs to survive the decedent in order to inherit from the estate. RCW 11.05A.020 provides that, with certain exceptions, “an individual who is not established by clear and convincing evidence to have survived the other individual by one hundred twenty hours is deemed to have predeceased the other individual.”

What exactly does that mean? And why does it matter? Suppose Tom and Larry are married. Both of their Wills indicate that, if one of them is deceased, all of the deceased spouse’s assets will be distributed to the surviving spouse. The Wills do not define survival, so the statutory definition applies. Tom’s Will provides that, if Larry fails to survive him, his assets will instead be distributed in equal shares to his uncle Fred and sister Laverne. Larry’s Will states that, if Tom fails to survive him, his assets will instead be distributed to the Roger Federer Foundation.

Tom and Larry are driving to the grocery store, and their vehicle is totaled by a speeding Prius that flies through the intersection without heeding the red light. Tom dies instantly. Larry is transported to Harborview Medical Center with life threatening injuries. Suppose Larry lives for one hundred and twenty one hours, and then dies as a result of his injuries? In that event, pursuant to RCW 11.05A.020, Larry is deemed to have survived Tom. All of Tom’s assets will be distributed to Larry. Then all of those assets, in turn, will be distributed to the Roger Federer Foundation pursuant to the terms of Larry’s Will. Suppose Larry only lives for one hundred and nineteen hours and then dies? Larry has not survived Tom pursuant to the statute. Therefore, Tom’s estate will be distributed in equal shares to Fred and Laverne and Larry’s estate will be distributed to the Roger Federer Foundation. Here, two hours made a significant difference in the distribution of Tom’s and Larry’s estates.

It’s important for everyone, as they undergo the estate planning process, to consider what happens if any of their beneficiaries fail to survive them. Do you have questions? We’d be happy to help.

This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.

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