February 11, 2015

Time of Death - Survivorship Requirement

A person is entitled to receive an inheritance only if they outlive the decedent. Dead people, no matter what you may hear otherwise, are not allowed to inherit anything.  This is known as survivorship.

A logical follow-up question then is, how long does the beneficiary have to survive (or outlive) the decedent in order to inherit from them, i.e. 1 hour, 1 day, 1 month? Usually the trust will specify a survivorship period, e.g. the beneficiary must survive the decedent for at least 30 days in order to receive their inheritance. The default California law for survivorship is at least 120 hours, albeit this applies to cases of intestate succession. Prob C § 6403. 

Naturally, it is prudent to clearly specify when the survivorship period is triggered or else litigation can arise as to the interpretation of the survivorship clause.

In Burkett v Capovilla (2003) 112 CA4th 1444, Erma unfortunately used a paralegal service to write her trust in 1998 (never a good idea). The survivorship requirement clause read "for all gifts under this instrument, the beneficiary must survive for sixty (60) days before entitlement to such gifts." 

The decedent had two children, Peter and Eleanor.  The two children were the original primary beneficiaries. However, Eleanor predeceased her mother, as she passed away in September 2001 and then Erma passed away in October 2001. 

In probate court, Eleanor's children argued that because Eleanor survived for at least 60 days after Erma created her trust in 1998, they were entitled to Eleanor's beneficial interest as her heirs. Peter objected stating that the clock began when Erma passed away, October 2001. Since Eleanor predeceased Erma, Eleanor failed to survive the required 60 days.

The trial court ruled that the survivorship period began when the Erma executed her trust, 1998. Thus, because Eleanor survived for at least 60 days after Erma wrote her trust, Eleanor's children were entitled to her share.  I am not sure how many days are between 1998 and September 2011, but I'll just assume it is more than 60.

Later the California Court of Appeal reversed, holding that the ordinary meaning of the word "survivorship" denotes living past somebody who died.  Hence, whereas Eleanor predeceased Erma, Eleanor did not survive Erma for the required 60 days. The result was that Peter became the sole heir of Erma's estate.