Nobody likes to think about dying, let alone passing away at the same time as your partner.

However, if a freak accident occurs and you pass away together, a question arises as to how respective estates will be managed and whose Will would apply.

Generally speaking, married or de facto couples usually leave their estates to their spouse. Then, in the event they do not survive each other, they typically leave it to any surviving children as reserves (i.e. alternate) beneficiaries.

However, where a deceased couple is childless, or if one has children from a previous relationship, their intentions on who are to benefit from their respective estate may differ and the situation becomes more complex.

Younger shall be deemed to have survived the elder 

In cases where a couple die at the same time, or all purposes affecting the title to property, it is presumed to have occurred in order of seniority.

This is outlined in section 65 of the Succession Act 1981 (Qld) (the Act), whereby the younger shall be deemed to have survived the elder for a period of 1 day.

Joint assets

Joint assets are non-estate asset. If you own a home with your spouse as joint tenants, upon the death of a spouse, full ownership will automatically revert to the surviving spouse.

However, it is important for couples to be mindful of what is to happen to their jointly owned assets, should they pass together, and it cannot not be established which one of them died first.

In this scenario, the jointly owned property will ultimately form part of the younger person’s estate and be distributed to the beneficiaries outlined in their Will (which may or may not be the intention of the older person).

Accordingly, if it is your intention that both partners’ extended families benefit in the unfortunate event that you die together, you may wish to consider having your respective Wills cater for both sides of the family.

Timing – 30 day survivorship rule

Couples who are preparing Wills should also be mindful of the 30-day survivorship rule.

Section 33B of the Act provides that if property is made to a person who dies within 30 days after the Will-maker’s death, the Will takes effect as if the person had died immediately before the Will-maker (unless a contrary intention appears in the Will).

The purpose of the 30-day survivorship rule is to avoid the administration of dealing with the same property through multiple estates (which might otherwise occur without delay in respect to the distribution to the beneficiaries).

Example:

• Jane (aged 49) and John (aged 50) died in a car crash on 1 January 2024 and it could not be established which one of them died first.

• Under their Wills, they leave their entire estates to one another in the first instance.

• However, if they do not survive one another (i.e. if they predeceased one another):
  • under John’s Will, his two daughters from a previous relationship, Jill and Joy are to receive his estate in equal shares; and
  • under Jane’s Will, her nephew, Jack is to receive her estate.

Given the example above, if Jane lived for 30 days after her husband, then she would inherit John’s entire estate as intended. John’s estate would then form part of Jane’s estate assets to be distributed in accordance with Jane’s Will (i.e. to her nephew Jack).

However, where it could not be established which one of them died first, the following would take place:

1. under section 65 of the Act, Jane (being younger of the two) died after John;
2. however, under section 33B, the distribution to Jane under John’s Wills fails because she did not survive John by 30 days; and
3. therefore, the distribution to John’s reserve beneficiaries, Jill and Joy are enlivened because Jane did not survive John by 30 days.

Though most would assume John’s estate would fall to Jane’s estate; ultimately, Jill and Joy are to benefit from John’s estate.

Important to seek advice

This area can be complex where children from outside the relationship are concerned, particularly with blended families and if the older partner has children from a previous relationship.

This open’s the floodgates to potential risks of claims against estates.  

Regardless if you have children, no children, if you are a stepparent, or have children with more than one person, it is prudent to seek expert estate planning advice whist having your Wills prepared.

Otherwise, as outlined above, you may run into circumstances where your estate may end up in the hands of those you may not have intended – especially if you and your partner were to pass away together.

Please feel free to contact us to ensure your estate planning affairs are in order or if you have questions in respect to the distribution of an estate.