Legal Definitions - survival clause

A survival clause (also known as a survivorship clause) is a common provision found in a will. It states that a person named to receive a gift or inheritance (the beneficiary) must live for a specific period of time after the death of the person who made the will (the testator) in order to receive that gift. If the beneficiary dies before this specified period ends, the gift does not go to them or their estate; instead, the will usually directs it to another beneficiary or adds it back into the general pool of assets to be distributed.

This clause serves several important purposes, primarily to prevent assets from passing through multiple estates in quick succession, which can complicate administration, incur additional taxes or fees, and potentially lead to unintended beneficiaries receiving the assets.

Here are some examples illustrating how a survival clause works:

• Example 1: Preventing unintended beneficiaries through quick succession

  A woman's will leaves her entire estate to her husband, but includes a 30-day survival clause. If her husband does not survive her by at least 30 days, her will specifies that the estate should instead go directly to her children.

  How it illustrates the term: If the husband were to die 15 days after his wife, the survival clause would prevent the estate from first going to him and then being distributed according to his own will (which might include beneficiaries outside of the wife's direct family, such as his siblings or a new spouse). Instead, the clause ensures the assets pass directly to the children, aligning with the wife's primary intention and avoiding the need for the assets to be probated through two estates in rapid succession.

• Example 2: Avoiding administrative complications for short-lived beneficiaries

  A man's will leaves a substantial sum of money to his elderly sister, but includes a 60-day survival clause. If she does not survive him by 60 days, the money is to be given to a specific charitable organization.

  How it illustrates the term: If the sister were to pass away 45 days after her brother, the survival clause would prevent the money from becoming part of her estate. This avoids the administrative burden, potential delays, and costs of probating that money through her estate, especially if she had no immediate need for it and it would simply pass to her own heirs. Instead, the clause ensures the funds go directly to the charity as the brother intended, streamlining the distribution process.

• Example 3: Ensuring assets remain within a specific family line

  A grandmother's will leaves a valuable collection of antique jewelry to her grandson, but includes a 90-day survival clause. If he does not survive her by 90 days, the collection is to be given to her granddaughter.

  How it illustrates the term: This clause ensures that if the grandson were to die shortly after his grandmother (e.g., 50 days later), the antique jewelry collection would not become part of his estate. Without the clause, the jewelry might then be distributed to his spouse or other heirs who are not part of the grandmother's direct family line. The survival clause ensures that if the grandson cannot benefit from the gift for a reasonable period, the cherished family heirlooms pass directly to the granddaughter, keeping them within the intended family branch.