Legal Question in Wills and Trusts in Georgia

A presumption of survival clause is generally inserted in a higher net worth married couple's Wills in favor of the spouse with a substantially smaller estate. The purpose is to ensure against an inadvertent loss of any otherwise unused estate tax credit in the smaller estate (i.e., value in excess of wealthier spouse's applicable credit flows into smaller estate, resulting in family beneficiaries enjoying full benefit of both spouse's estate tax credits). In more modest estates, where estate taxes are of lesser concern, the presumption of survival provision will typically favor survival of the testator (person making the Will), in the hope of minimizing administrative headache/expense & expediting enjoyment by beneficiaries who actually survive long enough to truly enjoy the inheritance.

Simultaneous death presents a problem in probate, and such clauses, in both wills, can help, provided neither will contradicts each other. I do NOT like the wording you have presented, and a good lawyer could address that better with more details on your situation.

This is going to depend on what assets you have, whether one spouse has significantly more assets than the other. Rather than the formulation that you set forth, there is a requirement for federal tax purposes that any beneficiary or your spouse survive you by a certain length of time (90 days).

I hope that you are not trying to draft the will yourself and found a clause off the internet. If you have an attorney, then you need to discuss the clause with your attorney. If you don't have an attorney, then you need to get one and have the attorney draft the will or trust for you.

Most wills are very affordable. Right now, the estate tax exemptions are $5 million for single individuals and $10 million for married couples. If you have $500,000 or more in assets, you can certainly afford legal counsel to make sure this is done right. If you have less and are not likely to amass $1 million or more, then you should need a will rather than a trust and you should still get a lawyer. I can't see that there will be any tax issues, but the issue may be likely to come up more in a blended family situation where you don't want all the property going to the surviving spouse who dies a short time after the first spouse leaving all the children from the first marriage effectively disinherited.

Below are the relevant provisions from the Georgia Simultaneous Death Act. Basically, the act provides for a distribution if simulataneous death occurs. If the disposition that you want is contrary to what is provided for in the statutes, then you need to add a clause to your will. If you are okay with the simultaneous death rules, then you can, but don't have to add a clause.

� 53-10-2. Disposition of property upon simultaneous deaths where devolution depends on priority of death

When the title to property or the devolution of property depends upon priority of death and there is no sufficient evidence that the individuals have died other than simultaneously, the property of each individual shall be disposed of as if that individual had survived, except as provided otherwise in this chapter.

� 53-10-3. Disposition of property upon simultaneous death of beneficiary and another individual where interest depends on survival

If property is so disposed of that the right of a beneficiary to succeed to any interest in such property is conditional upon surviving another individual and both individuals die and there is no sufficient evidence that the two have died other than simultaneously, the beneficiary shall be deemed not to have survived. If there is no sufficient evidence that two or more beneficiaries have died otherwise than simultaneously and property has been disposed of in such a way that at the time of their deaths each beneficiary would have been entitled to the property if that beneficiary had survived the others, the property shall be divided into as many equal portions as there were such beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each such beneficiary survived.

� 53-10-4. Disposition of property upon simultaneous death of joint owners

If any stocks, bonds, bank deposits, or other intangible property shall be owned so that one of two joint owners is entitled to the whole on the death of the other and both owners die and there is no sufficient evidence that the two joint owners have died otherwise than simultaneously, these assets shall be distributed one-half as if one joint owner had survived and one-half as if the other joint owner had survived. If there are more than two joint owners and there is no sufficient evidence that all have died other than simultaneously, these assets shall be divided into as many equal shares as there are joint owners and these portions shall be distributed respectively to those who would have taken in the event that each joint owner had survived.

� 53-10-5. Applicability of chapter

This chapter shall not apply in the case of wills, trusts, deeds, contracts of insurance, or any other situation where provision is made for distribution of property different from that provided in this chapter or where provision is made for a presumption as to survivorship which results in a distribution of property different from that provided in this chapter.