Legal Question in Wills and Trusts in North Carolina

There is a simultaneous death clause in NC. See below statute at � 28A-24-2. A spouse has to survive by at least 120 hours (5 days) unless your will provides otherwise. If there is no will or no provision and your spouse or you do not meet the 120-hour requirement and you both die such that the order of death cannot be determined, then you will each be presumed to have outlived the other and your estate distributed as if you or your spouse outlived the other. This means that if you die any property solely owned by you will pass as per your will, any property solely owned by your husband will pass as per the intestacy law and any property owned jointly by you and your spouse would be equally divided between your respective estates, i.e., 1/2 to each.

Even though you have a will, I am somewhat concerned as you indicate that if you died, your property would pass to your spouse and then your sister. However, you indicate that you have a son. Is the son your biological or adopted child? Is he mentioned in your will? While children do not have an automatic right to inherit from their parents if there is a will, any omission of the child leaves open a door to a possible caveat or argument that the omission was unintentional and that the child should be deemed to inherit. If you have intentionally disinherited your son make sure that your will does so properly.

Your husband not having a will is inexcusable. I prepare wills and other estate planning documents (in addition to a will, you should both have financial and health care powers of attorney and living wills) for a reasonable fee; your husband should contact me if he is interested, at [email protected].

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� 28A-24-2. Requirement of survival by 120 hours.

(a) Except as otherwise provided in this Article, where the title to property, the devolution of property, the right to elect an interest in property, or any other right or benefit depends upon an individual's survivorship of the death of another individual, an individual who is not established by clear and convincing evidence to have survived the other individual by at least 120 hours is deemed to have predeceased the other individual.

(b) If the language of the governing instrument disposes of property in such a way that two or more beneficiaries are designated to take alternatively by reason of surviving each other and it is not established by clear and convincing evidence that any such beneficiary has survived any other such beneficiary by at least 120 hours, the property shall be divided into as many equal shares as there are alternative beneficiaries, and these shares shall be distributed respectively to each such beneficiary's estate.

(c) If the language of the governing instrument disposes of property in such a way that it is to be distributed to the member or members of a class who survived an individual, each member of the class will be deemed to have survived that individual by at least 120 hours unless it is established by clear and convincing evidence that the individual survived the class member or members by at least 120 hours.