Simultaneous Deaths/Changes in Testator's Family After Will is Executed

Question 1

What is the revised Uniform Simultaneous Death Act (RUSDA)?

Answer 1

Absent a will provision to the contrary, if two people die within 120 hours/5 days of each other (even instantly), if there is no proof that one survived more than 120 hours than the other, presume that each predeceased the other, depending on whose estate you are distributing.

KEY: Look at whose estate you are distributing.

Question 2

What does RUSDA do to jointly-held property?

Answer 2

Jointly-held property passes as though each co-owner survived the other. RUSDA theoretically severs the right of survivorship in cases of jointly-held property.

Question 3

What happens if the testator marries after the will is executed?

Answer 3

Marriage after the execution of a will has no effect on the validity of the will, but it may affect the gifts and dispositions under the will.

Question 4

What happens if the testator “unmarries” after the execution of the will?

Answer 4

If the court renders a final decree of divorce, annulment or separation after the execution of a will, all gifts and fiduciary appointments in favor of the former spouse are revoked by operation of law.

You read the will as if the spouse predeceased the testator.

Question 5

What happens to children who are born or adopted after the will is executed (pretermitted children)?

Answer 5

The EPTL only protects pretermitted children who are:

a. not provided for by any settlement; AND
b. neither provided for nor mentioned in the will.

If the testator had one or more children when the will was executed and…

1. no provision is made for any children, the pretermitted child inherits nothing.
2. the will made gifts to the other children, the pretermitted child shares in the amount to the other children as if the class gift was made.
3. it appears that the testator was to only make a limited provision to the chidlren living at the time the will was executed, the pretermitted child takes his intestate share.

If the testator had no children when the will was executed, the pretermitted child takes his intestate share.