Whose Will Applies If Both Parents Die At The Same Time?

Nobody likes to think about a parent dying, let alone both parents passing away at the same time, but if an accident such as a car crash did take both parents’ lives in the same event, how would their estates be managed and whose Will would apply?

Married or de facto couples usually leave their estates to their spouse first, and then to any children in the event their spouse is no longer alive. In these types of scenarios, the distribution of the estates is far simpler. However, where a deceased couple is childless, and one half of the couple had elected for their estate to first be bequeathed upon their spouse and then to a niece, but the other person in the couple had directed their assets to their spouse, then to a friend, the situation becomes far more complex. Tricky situations like this can cause complications if the law is not applied correctly.

According to the Succession Act (2006) in cases where a couple or both parents die at the same time, the younger of the two would be considered to have died second. Therefore, the younger person’s Will would apply.

How this works, is that the younger of the two would inherit any estate left to them in the elder partner’s Will and then the younger person’s Will would take effect and include the estate of the elder partner. In most cases, this will simply mean any children of the relationship inherit their parents’ assets in their entirety, but this can be complex and potentially acrimonious where children from outside the relationship are concerned, particularly if the older partner has children from a previous relationship.

Timing is everything

Couples who die within a short time of each other can also be affected by a peculiar section of the Succession Act, which effectively renders one partner to have died, despite technically still being alive.

Let’s say a wife has bequeathed their entire estate to their husband but dies 29 days prior to the husband. Section 35(i) of the Succession Act, which has a requirement that a partner outlives the other by 30 days, tells us that the husband has legally died prior to his deceased wife.

Should the husband live for 30 days after their wife has died, however, then he would inherit the wife’s estate as intended. This estate would then make up part of the husband’s estate, which would be distributed to the beneficiaries named in the husband’s Will, even if the wife’s Will had not named the same beneficiaries, because her Will no longer applies.

Seeking expert advice to protect blended families

If you are a step-parent or have children with more than one person, it is prudent to seek expert legal advice when you have your Will drawn up. Although it is unlikely that you will pass away at the exact same time as your spouse or the other parent/s of your child/ren, a Wills specialist will be able to identify any issues that may arise around your particular circumstances. They can also ensure that if you were to die at the same time as your spouse, any children from a previous relationship could still benefit from your estate by making adjustments, such as to the survivorship clause.

This area of the law can be simple or complex. If you have lost a parent and feel that you may not inherit from their estate as you feel you may be entitled to, you should seek legal advice from an experienced wills & estates lawyer in Cairns.