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Hammerle: Surviving the common disaster

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Virginia N. Hammerle
Virginia N. Hammerle

120 hours.

That is how long a devisee or heir must outlive a decedent to lay claim to an inheritance.

Now let’s delve into the details.  For an heir (who takes if the decedent was foolish enough to die without a Will), the 120- hour rule is absolute.  For a devisee (a beneficiary under the Will), the 120- hour rule is only effective if the Will fails to address a survivor period.

Most well-drafted Wills contain a time-of-survivor period of 30 to 90 days.  If the devisee outlasts the survivor period, then he gets the bequest.  If he outlasts the survivor period but dies before he actually receives the bequest, then his estate receives the bequest.  If he dies before the end of the survivor period, however, he is treated as if he died before the decedent.

Sometimes a drafter gets a little sloppy, and then it’s chaos.  That is what happened on the nearly identical Wills of Vencie and Melba Beard, a married couple.  Each Will contained a clause that stated “if both my [husband/wife and I] die in a common disaster or under circumstances making it impossible to determine [who] died first …..I bequest [specified cash amounts to nine individuals]. “   Later in the Will was a provision that other individuals would take the property if the spouse failed to survive by 90 days.

Sure enough, Vencie shot and killed Melba, and then killed himself less than two hours later.

The issue was whether the murder-suicide was a “common disaster.”  If it was, then the nine individuals took their bequest.  If it wasn’t, then the nine individuals took nothing, and the estate passed to other beneficiaries.

The Texas Supreme Court got involved, and decided that the Beards did not die in a common disaster because it was possible to determine who died first.  The nine individuals took nothing.  Stephens v. Beard, opinion issued March 18, 2016

Writing a good Will is more challenging than it may appear.

Hammerle Finley Law Firm. Give us a call at 972-784-0293.  We can help.


Virginia Hammerle
is a Board Certified Civil Trial Attorney by the Texas Board of Legal Specialization and an 
Accredited Estate Planner by the National Association of Estate Planners & Councils. She can be contacted at legaltalktexas@hammerle.com. The information contained in this article is general information only and does not constitute legal advice. ©2016

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