A commorientes clause is a clause that state in the Will that the beneficiary will only be entitled to the gifts if the beneficiary survives the testator by certain days. Usually 30 days after the death of the testator. The literal meaning of commorientes is “simultaneous deaths“. The commorientes rule applies for the purpose of determining title to property. It states that (subject to any court order) if two or more people die in circumstances where it is not possible to tell who died first. The deaths presumed to have occurred in order of seniority. So, the younger deemed to survive to elder. Common scenarios where such “simultanous deaths” occur in air plane crash, terrorist attack, and car accident.
What is a Commorientes Clause?
This clause is useful in the situation that if the testator and the beneficiary died at the same time. Or, it cannot determined who died first such as in an accident. Section 2 of the Presumption of Survivorship Act 1950 states that in all cases where two or more persons die in circumstances rendering it uncertain which of them survived the other or others. Such deaths shall (subject to any order of the court) for all purposes affecting the title to property be presumed to have occurred in order of seniority. And, accordingly the younger shall be deemed to have survived the elder. It means the younger person will deemed to have survived the older person.
If the testator and the beneficiaries died together in such a scenario, the younger beneficiary in the Will that without a commorientes clause will inherit the testator’s gifts and therefore it will form part of the beneficiary’s estate. Is the testator intention?
If there is such a commorientes clause in the Will, the deceased beneficiary is deeded to have died before the testator. Therefore, that beneficiary will not inherit the gifts. And, the gifts will be distributed to the other beneficiaries stated in the Will.
The purpose of having such a clause in the Will is to prevent the gifts from being part of the estate of the beneficiary who did not survive long enough to entitle the gifts and also to avoid the gifts to be transferred twice.
Why Have a Survivorship Requirement?
Survivorship requirement are designed to come into play in case of the simultaneous (or near-simultaneous) death of a will-maker and a major beneficiary. For example, a husband and wife. Such occurrences are extremely rare in real life. But, the possibility worries a lot of people when they sit down to write their wills. Here’s the worry. Your assets would pass under your beneficiary’s estate plan, not yours.
An example may make it clearer. Say that in her will, Sara leaves everything to her brother Tomas. And, names her favorite charitable organization as the alternate beneficiary. So under normal circumstances, at Sara’s death, her assets would pass to her brother; if he were no longer alive at Sara’s death, her assets would go to the charity. But let’s say that Sara dies, and then Tomas dies 10 days later. Without a survivorship period, he would inherit everything. The assets would then pass under the terms of his will. Perhaps to Sara’s no-good nephew—not to the charity that she named as alternate beneficiary. The family would also have the added financial burden of two probate proceedings. One for Sara’s estate, another for Tomas’s estate. Before the assets could transferred to their ultimate owner.
If, however, Sara’s will contained a 30-day survivorship period, then nothing would go to her brother. Instead, her assets would pass to the charity, as she intended. Her estate plan, not her brother’s, would determine where her assets ended up.
Survivorship Periods in Wills and Trusts
A “survivorship period” is a standard feature of many wills and trust documents. A survivorship clause states that beneficiaries named in the document cannot inherit unless they live for a specific amount of time after the will- or trust-maker dies. This time is called a survivorship period, and commonly ranges from about five to 60 days. For example, a will might state that “a beneficiary must survive me for 45 days to receive property under this will.”
It’s unusual to see a survivorship period longer than 60 days. If a survivorship period is more than 120 days, it could jeopardize the estate-tax-free transfer of assets from a deceased spouse to the survivor. Federal estate tax isn’t a concern for most people (more than 99.5% of estates don’t owe any tax). But, even without the tax consequences, a long survivorship period isn’t necessary.
Do You Need Commorientes Clause?
When a beneficiary dies before the testator even for one second, it is clear that he/she will not be entitled to receive the inheritance. The next surviving substitute beneficiary will inherit as shown in the diagram. This is easily determined by referring to the time of death of the beneficiary against the time of death of the testator.
There are a few unique situations:
- The testator and a younger beneficiary died at the same time. Or, it cannot determined who died first such as in an accident; or
- The testator and an older beneficiary died at the same time. Or, it cannot determined who died first such as in an accident; or
- The testator and a beneficiary of the same age died at the same time. Or, it cannot determined who died first such as in an accident; or
- The testator and a beneficiary (whether same age or older or younger) died at the same time. Or, it cannot determined who died first such as in an accident but with a commorientes clause in the Will.
Let’s go discuss each of these.
1) The testator and a younger beneficiary died at the same time. Or, it cannot determined who died first such as in an accident.
Under the Presumption of Survivorship Act 1950 it states that the younger person will deemed to have survived the older. In other words, the older dies first; or the younger survives. By applying the above, the younger beneficiary is said to survive the testator and therefore is able to inherit from the testator. In this case the beneficiary’s estate will receive the inheritance.
Husband & Wife case for example:
2) The testator and an older beneficiary died at the same time. Or, it cannot determined who died first such as in an accident. Applying the same Act mentioned above, the older beneficiary will said to have predeceased the testator. Thus, his estate will not be receiving the inheritance. The substitute beneficiary of the older beneficiary named in the testator’s will. Or, if there is no substitute beneficiary, the residue beneficiary will be entitled.
3) The testator and a beneficiary of the same age died at the same time. Or, it cannot determined who died first such as in an accident. Using the same Act, there is a need to determine when who is born earlier or later to determine who is older in age. The answer lies in either (1) or (2) above.
4) The testator and a beneficiary (whether same age or older or younger) died at the same time. Or, it cannot determined who died first such as in an accident but with a commorientes clause (also known as a survivorship clause) in the will. Where there exists a commorientes clause in the will, the provisions in the Presumption of Survivorship Act shall not apply.
How does Commorientes Clause Work?
The commorientes clause is written as follows:
“In the event any of the beneficiaries does not survive by thirty days, he/she shall treated as having predeceased me”. The number of days stated above can amended to be shorter or longer.
The intention of including such a clause in a will is to prevent the gift from being part of the estate of a beneficiary who did not survive long enough to enjoy the gift. It is also not possible to state the most appropriate number of days to state, simply because no one knows when the beneficiary will die.
The diagram below illustrates how the Commorientes Clause operates.
So, if the beneficiary does not survive the testator for more than the period stated, he/she will treated as having died before the testator. And, the share of the testator’s estate that was bequeathed will distributed to the substitute beneficiary of the assets or fall under the residuary estate. Thus, it is important for your client to include a commorientes clause if he wants to prevent his hard-earned assets from going to an unintended beneficiary’s hands such as a brother in law!
As a Professional Rockwills Estate Planner, you may advise your clients to include a commorientes clause in their Will.
Case Studies
Couples often worry about dying together in an accident. In reality, this rarely happens, but it is prudent to cover the possibility when making a will. For example, if a husband (the elder or older) and a wife (the younger) die together in a car accident. And, it is not possible to tell who died first. The wife deemed to survive the husband for the purposes of succession to their estates. In drafting of Will, due to this rule, it is common to provide a survivorship clause to provide for such a scenario.
For example, a gift in a Will may specify that:
“I, Tom, give all my assets anywhere in the world (“my Assets“) to my wife Mary absolutely. But, if she does not survive me by 7 days, I give my assets to my son John absolutely.”
In this example, Mary does not inherit the gift unless she survives Tom by 7 days. Note that “7 days” simply stated as an illustration and not as a rule or standard. And, the period can be “10 days”, “28 days”, “90 days” or “6 months” as may be preferred by the Testator. The time period stated is arbitrary as it is almost impossible to predict one’s death. However, the preference is not to stipulate too long a period as the beneficiary will have to wait that period before he can apply for the Grant of Probate or administer the estate.
In this example, if Tom and Mary were travelling to New York in a plane where it crashed into the sea midway and all the passengers died simultaneously (where it is not possible to tell who died first). Then, Mary deemed not to have survive Tom by 7 days and the gift to her will lapse. And, their son John (if he is alive) would inherit the whole of his father’s (Tom) assets. In drafting such a clause, although it may appear simple, care should taken in drafting the survivorship to prevent unintentional gifts. (Source: LAW.com.sg)
Conclusion
This clause overrides the legal presumption in the Presumption of Survivorship Act 1950. And, it helps your client to exert a certain control over his assets. So that, if the main beneficiary dies shortly after him, the assets will not pass according to the main beneficiary’s own will or intestacy, but according to your client’s intention.
**Please refer to the Q&A below for your further clarification
Commonly asked Questions
1. What is a Commorientes Clause?
It is a clause in a Will which states that a beneficiary must survive for a given period of time. 30 days recommended for the gift to take effect. If the beneficiary dies within the stated period, then the gift will fail and will distributed to the Substitute Beneficiary/ies as named by the Testator in his Will. Such a clause is important to secure the benefits of the Substitute Beneficiary/ies.
2. Why it is not advisable for the survivor period to be too long?
Despite the freedom for the client to decide on the length of time the beneficiary must survive. It is not advisable for it to be too long. This is because distribution by the executor cannot be done to the beneficiary until the expiry of the period stated in the commorientes clause. For example, the testator died in February 2019 and probate obtained in July 2019. The executor settled all the debts and taxes of the testator by October 2019. And, was ready to distribute in November 2019. However, the commorientes clause stated that the beneficiary must survive him by 365 days. Due to this, the executor can only establish who the beneficiary is in March 2020. After 365 days of the death of the testator. And, distribute the bequest accordingly.
Now you understand more about the commorientes clause! But some of you may be wondering whether it is necessary to include such a Clause if the intended Substitute Beneficiary of both husband and wife is the same person?
Example:
