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Why You Need a Will - Simultaneous Death

In many cases, the testator dies before the beneficiary. In fact, the Estates Code, which governs probate law in Texas, presumes that the testator and a beneficiary will not pass away close together in time. However, that is not always the case. In tragic situations, a beneficiary to a will may pass away within a short period of time from the testator, known as Simultaneous Death in the Texas Estates Code.

Simultaneous death can cause confusion if not properly planned for in a will. In the absence of a clause in the will, the Estates Code presumes that there is a simultaneous death when the testator and a beneficiary pass away within 120 hours of one another. Under this statute, if the testator and a beneficary pass away within 120 hours of one another, then each party is treated as if they passed away at the same time, which can affect the terms of each will including property distribution. An estate plan can change the simultaneous death time period to a maximum of 120 days.  Survival Requirements may be found in Chapter 121 of the Estates Code.

Estates Code 121.101 states:

"A devisee who does not survive the testator by 120 hours is treated as if the devisee predeceased the testator unless the testator's will contains some language that:

(1) Deals explicitly with simultaneous death or deaths in a common disaster; or

(2) Requires the devisee to survive the testator, or to survive the testator for a stated period, to take under the will."

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