You and your spouse have planned for the future. You’ve named each other as beneficiaries, created a trust, and talked about how the surviving spouse will care for your family when one of you is gone.
But what happens when neither of you is there to carry on?
What if you and your spouse die in the same accident? What if one of you dies unexpectedly, and the other passes away just a few days later?
Most couples don’t think about these possibilities when creating their estate plans. It’s understandable. We naturally imagine that one spouse will outlive the other, perhaps by many years.
Unfortunately, life doesn’t always follow the timeline we expect.
When I review an estate plan with a couple, I want them to be able to answer three important questions:
- Who inherits first?
- How long must that person survive you to receive their inheritance?
- Who inherits if they don’t?
The answers can determine whether your assets pass to the people you intended, whether your family faces additional probate proceedings, and whether your estate plan works the way you expected.
Two well-known stories illustrate why these questions deserve attention.
When Spouses Die Days Apart
In February 2025, legendary actor Gene Hackman and his wife, Betsy Arakawa, were found dead in their Santa Fe, New Mexico, home.
Hackman, the two-time Academy Award-winning actor known for films including The French Connection and Unforgiven, was 95. His wife, a classical pianist, was 65.
The couple had been married since 1991 and had spent much of their later years living privately in New Mexico.
When authorities discovered their bodies on February 26, the circumstances surrounding their deaths were initially unclear. Investigators eventually determined that Arakawa had died first, likely from hantavirus pulmonary syndrome, a rare disease associated with exposure to infected rodents.
Hackman died approximately a week later from heart disease, with Alzheimer’s disease contributing to his death. Authorities indicated that he may not have realized his wife had died.
Their deaths were tragic, but the circumstances also raised important estate planning questions.
Hackman had three children from a previous marriage. His publicly reported will named Arakawa as the beneficiary of his estate, while his living trust contained additional instructions that were not fully available to the public.
Arakawa’s estate plan reportedly included a provision requiring Hackman to survive her by 90 days to inherit certain property. Because he died approximately a week after she did, that survivorship requirement became particularly relevant.
Their story illustrates how the order and timing of two deaths can affect the administration and distribution of an estate.
If one spouse leaves everything to the other, but the surviving spouse dies before satisfying a required survivorship period, the inheritance may pass to someone else under the estate plan’s backup provisions.
Without those provisions, determining who receives the property can become more complicated.
For blended families, the consequences can be particularly significant. Assets that one spouse intended to preserve for their children could potentially pass to the other spouse’s beneficiaries instead, depending on the governing documents, asset ownership, and applicable law.
The Hackman case also illustrates another important consideration: estate planning isn’t only about deciding who inherits your property. It’s about making sure someone can step in when you or your spouse can no longer manage your affairs.
Your plan should address incapacity, identify trusted people who can act on your behalf, and provide clear instructions for what happens when both spouses are gone.
We don’t know every detail of the Hackmans’ estate planning arrangements, and their circumstances do not establish that their plan failed. But their story raises questions every married couple should consider, regardless of the size of their estate.
When Spouses Die Together
Another example involves John F. Kennedy Jr. and his wife, Carolyn Bessette Kennedy.
On July 16, 1999, Kennedy was piloting a small aircraft over the Atlantic Ocean near Martha’s Vineyard. His wife and her sister, Lauren Bessette, were traveling with him.
The plane crashed, killing all three.
Kennedy was 38, and Carolyn was 33. Their deaths brought an unexpected end to their marriage and left their families grieving multiple losses from the same accident.
Their story presents a different estate planning scenario from that of Gene Hackman and Betsy Arakawa.
Rather than spouses dying several days apart, the Kennedys died in the same accident.
When spouses die together, determining who died first may be impossible or legally irrelevant if neither survived the other for the period required under the applicable estate planning documents or state law.
Imagine a couple whose estate plan leaves everything to the surviving spouse.
If both die in the same accident, who inherits their home, savings, investments, and other assets?
What happens if their wills name each other as executors? Who will administer their estates?
And if they have minor children, who will care for them and manage their inheritance?
The answers depend on the couple’s estate planning documents, how their assets are owned, beneficiary designations, and applicable law.
The Kennedy tragedy is a reminder that an estate plan needs to account for more than the death of one spouse. It should also provide clear instructions for the possibility that both spouses die together.
A well-coordinated plan identifies backup beneficiaries, successor trustees, and other trusted individuals who can step in when neither spouse is available.
The goal is to make sure your family has clear instructions and the people they need to carry them out, even when the unexpected happens.
What Happens If Spouses Die at the Same Time? Your Plan and State Law Decide
If you leave most of your assets to your spouse, you probably picture them using that money for years.
But suppose your spouse dies just two days after you.
Who receives that property next?
Imagine your will leaves property to your spouse, whose will leaves their estate to children from a previous marriage.
If your spouse survives you long enough to satisfy the applicable survivorship requirement, the property passing under your will may become part of their estate and ultimately pass to their children.
If your spouse does not meet that requirement, your estate plan’s backup provisions and applicable law determine who receives the property instead.
A difference of just a few hours or days can change which document controls and who ultimately inherits.
This can also affect how your estate is administered.
Probate is the court-supervised process of administering a deceased person’s estate. When property passes from one spouse’s probate estate into the other’s estate shortly before the second spouse dies, additional administration may be necessary.
However, two deaths do not automatically mean two probate proceedings for the same assets. Property held in a properly funded trust or passing directly to a named beneficiary may follow different rules.
For blended families, these distinctions are especially important.
You may want your spouse to have financial security after your death while also ensuring that your children from a previous relationship receive the inheritance you intend for them.
Your estate plan should address both goals, including what happens if you and your spouse die within a short period of each other.
What a Survivorship Clause Actually Does
A survivorship clause specifies how long a beneficiary must live after you to receive an inheritance.
For example, your estate plan might require your spouse to survive you by 30 days.
If your spouse dies within that period, the clause may treat them as having died before you for purposes of receiving that inheritance.
Your plan’s backup instructions then determine who receives the property instead.
Consider a couple whose trust requires each spouse to survive the other by 30 days.
If one spouse dies and the other passes away two days later, the surviving spouse would not satisfy that requirement. The trust’s applicable distribution provisions would determine where the assets go next.
This can help prevent property from passing through one spouse’s estate only to be transferred again shortly afterward.
But choosing the appropriate survivorship period is only part of the planning process.
You also need to identify who should receive the property if your spouse does not survive long enough to inherit.
Should it pass to your children? Be divided between children from previous marriages? Remain in trust for younger beneficiaries? Go to another family member or a charitable organization?
These are decisions you should make together while you have the opportunity.
It’s also important to understand that a survivorship clause in your will or trust does not automatically control every asset you own.
Life insurance policies, retirement accounts, property deeds, and other assets may have separate beneficiary or survivorship provisions.
Your documents and beneficiary designations need to work together so that the instructions for each asset reflect your intentions.
The 120-Hour Rule: What Texas Law Says About Simultaneous Death
What happens if your estate planning documents do not specify how long your spouse must survive you?
Texas law provides survivorship rules for certain situations.
Under Chapter 121 of the Texas Estates Code, a person generally must survive the deceased individual by at least 120 hours, or five days, to inherit under the state’s intestacy rules or under a will that does not contain certain alternative survivorship provisions.
The law also contains specific rules for community property, jointly owned property with survivorship rights, and certain insurance proceeds.
For example, suppose you die on Monday and your spouse dies on Wednesday.
Your spouse survived you by two days, but that may not be enough to inherit property subject to the applicable 120-hour requirement.
When neither spouse survives the other by 120 hours, Texas law may require certain property to be distributed as though each spouse had survived the other.
For community property subject to Section 121.151, one-half is distributed as though one spouse survived, and the other half as though the other spouse survived.
However, the five-day rule does not apply universally.
A properly drafted will, living trust, deed, insurance contract, or other governing arrangement may provide different instructions. The applicable rule depends on the type of property and the language of the controlling document.
That’s why relying on state law alone may not produce the outcome you want.
Texas law cannot know whether you want your property to remain within one side of your family, whether a beneficiary has special needs, or how you intend to provide for children from a previous relationship.
Those are personal decisions that should be reflected in your estate plan.
When we create your Life & Legacy Plan, we consider your family relationships, financial circumstances, and long-term wishes before determining which survivorship provisions are appropriate.
A Joint Trust Does Not Make the Question Disappear
Many married couples create a joint revocable living trust because they want to simplify the management and distribution of their assets.
A joint trust can provide a coordinated framework for managing property during your lifetimes, after the first spouse dies, and after both spouses are gone.
But simply having a joint trust does not mean every possible scenario has been addressed.
Your trust should explain what happens when the first spouse dies, what changes if the surviving spouse dies shortly afterward, and how the remaining assets should be distributed.
For example, suppose you and your spouse create a joint trust that provides for the surviving spouse during their lifetime.
After both of you die, the remaining assets are to be divided among your children.
But what happens if you die on Monday and your spouse dies on Thursday?
Does your trust require the surviving spouse to live for a certain period before receiving a particular interest in the trust property?
Does the trust divide into separate shares after the first death?
Are there different instructions for your separate property and community property?
What happens if your spouse dies before the trust’s required survivorship period has passed?
The answers depend on how your trust is written.
For blended families, the details become even more important.
You may want your spouse to continue living in your home and have access to certain assets while ensuring that your children from a previous relationship eventually receive their intended inheritance.
Depending on your circumstances, your plan may establish separate trust shares, preserve certain assets for your children, or provide different distribution instructions for particular property.
Your trust also needs to account for assets that are not held in the trust, including retirement accounts, insurance proceeds, and property that was never transferred into it.
There is no single survivorship provision that works for every couple.
A joint trust is an important planning tool, but its effectiveness depends on how well its instructions reflect your assets, family relationships, and intended outcome.
Beneficiary Forms Need to Work With Your Estate Plan
Your will and trust are not the only documents that determine who receives your assets.
Life insurance policies, retirement accounts, and certain bank and investment accounts generally pass according to their beneficiary designations.
Those designations need to be coordinated with your broader estate plan.
Consider a life insurance policy naming your spouse as the primary beneficiary and your adult child as the contingent beneficiary.
If your spouse dies shortly after you, who receives the insurance proceeds?
The answer depends on the policy terms, beneficiary designation, and applicable law.
For certain life insurance proceeds, Texas law provides that if the insured and beneficiary die less than 120 hours apart, the insured is considered to have survived the beneficiary for purposes of determining beneficiary rights, subject to applicable exceptions and alternative governing provisions.
This is why naming backup beneficiaries matters.
If your spouse cannot receive the proceeds, you want the next recipient to be someone you intentionally selected.
The same principle applies to retirement accounts and other assets with beneficiary designations, although the specific rules governing those accounts may differ.
During your Life & Legacy Planning® Session, we review how your beneficiary designations, asset ownership, wills, and trusts work together.
We also coordinate with your financial, insurance, and tax professionals when their expertise is needed.
Your family does not experience your trust, retirement accounts, insurance policies, and home as separate planning projects.
When something happens, all of those pieces come together.
Your estate plan should provide a coordinated set of instructions so your family knows what happens to each asset and who is responsible for carrying out your wishes.
Your Family Needs an Answer Before the Emergency
When spouses die together or within days of each other, their families may suddenly find themselves grieving two losses while facing important financial and legal decisions.
They may need to locate estate planning documents, identify beneficiaries, determine who has authority to manage the assets, and understand what happens next.
That is not the time for your family to discover that your documents contain conflicting instructions or that no one knows who is supposed to take charge.
Your estate plan should provide clear answers before an emergency occurs.
That includes naming successor trustees, backup executors, and other trusted individuals who can act if neither you nor your spouse is available.
It also means making sure your loved ones know where to find your important documents and whom to contact when they need assistance.
As your Personal Family Lawyer® firm, our relationship with you does not end when your estate planning documents are signed.
We get to know your family, understand your goals, and help you keep your plan aligned with your life as circumstances change.
When something happens, your family has someone to call who is familiar with your estate plan and can help them understand the next steps.
While your loved ones are making funeral arrangements and supporting one another, we can help the people responsible for administering your plan identify the necessary documents, understand their responsibilities, and coordinate with other advisors as needed.
Clear documents provide the legal instructions. An ongoing relationship helps your family understand and carry out those instructions when they need them most.
Life & Legacy Planning®: What You Can Do Right Now
You don’t need to wait for a major life event to review your estate plan.
If you and your spouse already have a will or trust, take a few minutes to look through your documents.
Find the provisions that address survivorship, simultaneous death, and the distribution of your assets after both of you are gone.
Then ask yourselves:
- If we die in the same accident or within days of each other, who receives our assets?
- Does our trust clearly explain what happens after the first death and after both deaths?
- Have we named backup beneficiaries for our life insurance, retirement accounts, and other assets?
- Have we identified successor trustees and other trusted individuals who can step in if neither of us is available?
- If we have children from previous relationships, does our plan protect the inheritance we intend for them?
- Does our estate plan still reflect our family, finances, and wishes today?
If you don’t know the answers, that’s a good reason to schedule a review.
Avoid changing beneficiary designations or copying survivorship language from the internet without understanding how those changes may affect the rest of your plan.
The right instructions depend on your family, the assets you own, and the laws that apply to your circumstances.
At Misteli Law Firm, we believe estate planning should be about more than preparing documents and hoping they work when your family needs them.
During your Life & Legacy Planning® Session, we’ll help you understand what would happen to your family and assets under your current plan, identify potential gaps, and explore the planning options available to you.
Whether you are creating your first estate plan or reviewing an existing joint trust, we can help you develop a plan that reflects your wishes and provides clear instructions for the people you love.
You and your spouse have spent a lifetime building a life together. Your estate plan should protect what you’ve built, even if neither of you is there to carry it forward.
Contact Misteli Law Firm today to schedule your Life & Legacy Planning® Session and make sure your family knows what happens next.
For more on Texas estate planning, and to learn about estate planning lawyer Tom Misteli and The Misteli Law Firm, visit www.mistelilaw.com.
