Mr. Monk and the survivorship clause

I love the old detective show “Monk”. The comedy/drama/mystery still delights me when I see it on the back channels, and Tony Shalhoub gave the defective detective just the right dose of humanity and humor. I always wait in eager anticipation for the “here’s what happened” moment at the end.

One particular episode, titled “Mr. Monk Is At Your Service,” featured an estate planning twist. A wealthy couple each had children from prior marriages, a son in his case and two daughters in hers. They had separate wills which each left everything to the spouse, but if the spouse did not survive left it to their own specific children. In other words, her will said everything goes to my husband first, but if he doesn't survive it goes to my daughters; and his said everything goes to my wife first, but if she doesn't survive, to my son.

The son finds his father in the garage, dead of a heart attack. He quickly lures his stepmother out of the house and into the car, hits her on the head with a rock to kill her, and then stages an accident so it will appear she died by being thrown from the car. Next he calls 911, mimicking his father's voice, to report the accident and then pretends to have a heart attack while making the phone call. He drags his father's body out and sets it up by the accident scene. On first impression, it appears that the wife died in the accident, and the husband had a heart attack a short while later while calling it in. Of course, Adrian Monk notices the little things which show that this was no accident.

Why would the son have bothered to add the extra details to make it appear his father survived the accident, when he had actually died a short while earlier? After all, his father died of a heart attack, there was no foul play at that point. Ah, but if the wife survived the husband, then under the husband's will all of their wealth was going to the wife, and then through her will to her daughters. But if the husband survived the wife, it all went to him, and then to his son on his death. The son gets nothing if his father died first, but gets everything if the wife died first.

In the episode, they mention the wills the couple left behind, but the same thing could happen if there were no wills. Under the laws of most states, if a person dies “intestate” (meaning without a will) all or most of the estate will go to the surviving spouse. And if there is no surviving spouse, it goes to the surviving children of the deceased. “Children” generally does not include stepchildren.

In real life, sometimes there are weeks’ long trials, with testimony by accident reconstruction experts, about whether one person died a millisecond before the other in a car or plane crash. To avoid that kind of issue, Alaska has a statute which says that a person is not considered to have survived the other person, unless they survive by at least 120 hours (which is five days).

Is that enough? Back in the day, a respirator required a nurse to stand there squeezing a rubber bladder to keep the patient breathing. Five days used to be a long time to be on life support. But today, with modern medical technology, five days isn't very long; at that point they may still be trying to see if the survivor of an accident is going to make it.

And that is why, when I draft a will or living trust, I always include a survivorship clause. Typically, unless my client wants a different number, I say that a person has to survive by at least 30 days, and if not they are treated as if they died before. Some clients even choose a longer period, although if you make it too long, it can hold up the ultimate distribution of the estate.

Once in a while I see a document which says something like “If I die under circumstances in which it is difficult to tell which of us died first, then the other person is not treated as having survived me”. I have a real problem with that. I'm a lawyer, and I read the Alaska Supreme Court decisions each week. One of the most common reasons for a judge to have a decision reversed on appeal is that the judge should have first held a trial or hearing to determine the facts. So you can imagine an Alaska judge saying “But Counselor, how do I know for sure that it would be difficult to tell which of them died first, until I hold a trial? Now, when should we have you exchange witness lists?”

So don't use vague language, pick a number of days and stick with it. After all, 30 days after the accident, they weren’t ready to distribute assets anyway.

Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. Otherwise, your gift might instead be a curse.

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