Common Disaster Clause in Wills: Definition, Examples, and P...

Introduction

A common disaster clause is a provision in a will (or revocable trust) that sets the order of death when spouses or partners die in the same event or when it’s unclear who died first. By stating who is deemed to have survived—or by adding a survivorship period—the clause makes sure the estate is distributed according to the testator’s plan, not left to guesswork or default state rules.

Why this matters in the U.S.: Many states follow the Uniform Simultaneous Death Act (USDA) or the Uniform Probate Code (UPC) 120-hour rule. Those laws handle simultaneous or near-simultaneous deaths, but they may not match your goals. A common disaster clause lets you control the outcome, reduce court disputes, and avoid two probates in quick succession.

What You’ll Learn

• What a common disaster clause does and why people include it in wills and trusts
• How the clause interacts with the Uniform Simultaneous Death Act and the UPC 120-hour rule
• Popular clause formats: deemed survivor, survivorship period, alternate beneficiaries, charitable fallback
• Real-world examples that show how the clause affects estate distribution
• Practical drafting and planning tips, including coordination with beneficiary designations
• Key checkpoints to keep your plan clear, consistent, and up to date

Core Concepts

What Is a Common Disaster Clause?

• Plain definition: A will or trust provision that decides who is considered to have survived when two or more people die in the same incident or when the order of death cannot be established.
• Typical goals:
  • Avoid uncertainty and reduce the chance of litigation among heirs.
  • Prevent two probates in a short period (first spouse, then the other).
  • Keep assets moving to the intended beneficiaries (children, other relatives, or charities).
  • Coordinate with tax, trust, and beneficiary planning.

“Common disaster” can mean a car crash, plane crash, natural disaster, or any situation where death occurs so close in time that it’s uncertain who died first.

How U.S. Survivorship Laws Affect the Clause

• Uniform Simultaneous Death Act (USDA): In states that follow the USDA, if two people die and it’s not possible to tell who died first, each is generally treated as if they predeceased the other for property passing between them. This prevents assets from ping-ponging between estates.
• UPC 120-hour rule (survivorship requirement): Many states based on the Uniform Probate Code require a beneficiary to survive the decedent by 120 hours (five days) to inherit, unless the will says otherwise or applying the rule would cause an unintended result.
• Joint property and insurance:
  • Joint tenancy with right of survivorship: If deaths are simultaneous under state rules, the joint tenancy is often split, with each half passing to each person’s estate rather than all to one survivor.
  • Life insurance and retirement accounts: These often pay by contract to the named beneficiary. If the beneficiary is considered to have died first (or not survived by the required period), the policy may pay to a contingent beneficiary or to the insured’s estate.

A common disaster clause can override or fine-tune these default rules. It gives your executor and the court a clear instruction when evidence of the order of death is lacking or when survival is brief.

Common Ways to Write the Clause

• Deemed survivor: The will may say that, if both spouses die in a common disaster or if the order of death can’t be determined, one spouse is deemed to have survived the other. This can be useful for tax and trust planning built around a primary beneficiary.
• Survivorship period: The will or trust may require a beneficiary (often a spouse) to outlive the testator by 30, 60, 90, or 120 days. This helps avoid two probates and ensures assets flow to alternate beneficiaries if the survivor dies shortly thereafter.
• Alternate beneficiaries: The clause can name who takes if both spouses are treated as deceased at the same time (for example, children in equal shares, nieces and nephews, or a trust for minors).
• Charitable fallback: If neither spouse survives the other by the specified period, a set amount or percentage can pass to charity.
• Coordination with other assets: The clause can tie into retirement accounts, transfer-on-death designations, and life insurance by stating a consistent survivorship rule or confirming who should take if both spouses are gone.

Planning Considerations and Trade-Offs

• Avoiding double administration: A survivorship period can prevent assets from passing into the other spouse’s estate and then quickly out again, which can save time and expense.
• Beneficiary fairness: Without clear terms, assets can flow to in-laws or unintended heirs. A well-drafted clause keeps the focus on your intended recipients (for example, children from a prior marriage).
• Tax and timing: Who is deemed to survive can affect the use of marital deduction, portability, or funding of trusts. Work with an estate planning attorney or tax advisor to align the clause with your broader plan.
• Consistency across documents: Make sure your will, trust, beneficiary forms, and titling (joint tenancy, community property, etc.) line up on survivorship requirements and alternates.
• State law differences: Rules vary by state. Some states tweak the 120-hour rule or have special requirements for community property. A tailored clause helps ensure the result you want where you live.

Key Examples or Case Studies

• Specifying the survivor (John and Mary Smith): Their will stated that if both died in a common disaster, Mary would be deemed to have survived John. Result: John’s estate plan controlled the distribution, and Mary’s specified heirs took according to John’s instructions for that scenario.
• Alternate beneficiaries (Doe v. Roe): The will named the couple’s children as equal beneficiaries if both spouses died at the same time. Result: The estate passed equally to the children, avoiding uncertainty and minimizing the chance of a court fight.
• Charitable donation (Johnson Estate): The will directed that if both spouses died together, a set portion would pass to a named charity. Result: The charity received the planned gift, and the remainder flowed to family beneficiaries as stated.

These scenarios show how a short clause can decide who inherits, keep the plan consistent with family goals, and serve charitable wishes even when the order of death cannot be confirmed.

Practical Applications

• Pick a clear approach
  • Deemed survivor: Choose one spouse to be treated as surviving the other if deaths are simultaneous or indeterminable.
  • Survivorship period: Require survival by a set number of days (30–120 is common). Longer periods reduce back-to-back probates but can delay distributions.
• Name solid alternates
  • Primary alternates: Children, grandchildren, or a trust for minors or special needs.
  • Backup alternates: If primary alternates do not survive or disclaim, name a second tier (other relatives, close friends, or charity).
• Coordinate with non-probate assets
  • Life insurance and retirement accounts pay by beneficiary form. Update those forms to match your clause and include contingent beneficiaries.
  • Transfer-on-death and payable-on-death accounts should also reflect consistent survivorship rules and alternates.
• Address joint property and titling
  • For joint tenancy or community property with right of survivorship, decide whether to keep survivorship or convert to tenancy in common during planning, depending on your goals.
• Consider taxes and trusts
  • If your plan uses marital, family, or credit shelter trusts, make sure the deemed survivor and survivorship period support how those trusts are funded.
  • Charitable gifts can be positioned as a fallback to balance family inheritances and philanthropy.
• Keep evidence in mind
  • The clause applies when the order of death is unclear or when survival is too brief to meet the stated period. Death certificates and medical records commonly establish the facts. The clause tells your executor what to do when those facts are uncertain or within the stated period.
• Drafting tips
  • Define “common disaster” or simply state “if the order of our deaths cannot be determined.”
  • Specify the survivorship period in days, not “months,” to avoid calendar confusion.
  • State what happens to each class of assets (residuary estate, specific bequests) and how to handle lapsed gifts.
  • Use the same survivorship period across your plan unless there is a reason to differ (for example, a shorter period for life insurance proceeds).
• Keep it current
  • Review after marriage, divorce, births, deaths, large purchases, or moves to another state. Update beneficiary forms at the same time you update the will or trust.
  • Revisit charitable designations to confirm the organization’s current name and tax status.

Note: This guide is general information. For personal advice, consult an estate planning attorney in your state.

Summary Checklist

• Decide whether to name a deemed survivor or set a survivorship period (30–120 days).
• List clear alternate beneficiaries, and add backups for those alternates.
• Coordinate the clause with:
  • Beneficiary forms for life insurance, retirement accounts, TOD/POD accounts
  • Trust funding provisions (marital, family, or disclaimer trusts)
  • How your property is titled (joint tenancy, community property)
• Confirm the clause works with your state’s USDA/UPC rules.
• Use consistent survivorship language across your will, trust, and beneficiary forms.
• Add any charitable fallback you want to guarantee.
• Review and update after major life events or a move to a new state.

Quick Reference

Related terms for further reading:

• Curtesy
• Ambulatory Will
• Devise
• Lineal Descendants
• Contingent Remainder