Mirror Wills, But What If You Both Die?
Ron and Linda signed their wills on the same afternoon, in the same lawyer’s office, about fifteen years ago. The wills were mirror wills. Everything went to each other, and if the other one had already died, everything was to be split equally between their two adult children, Jen and Mark.
It’s how a lot of couples set things up, and for fifteen years it was exactly what they thought they needed.
Then one evening in February, on the highway home from their granddaughter’s hockey game, a pickup crossed the centre line. Ron died at the scene. Linda was taken to hospital and died eight days later.
Jen was named as the alternate Executor in both wills. She knew she’d be settling an estate for each of her parents. What she didn’t expect was that her dad’s estate would have to go through her mom’s before any of it reached her and her brother.
What eight days did to their wills
Ron’s will left everything to Linda. The gift to Jen and Mark only applied if Linda died before him, and she didn’t. She survived him by eight days, so everything Ron owned became part of Linda’s estate.
That meant Jen had to settle her dad’s estate first, transfer everything he owned into her mom’s estate, and then settle her mom’s estate, which now held both. Her dad’s assets were handled twice, through two sets of accounts. Where probate fees are based on the value of an estate, those assets could be counted again in her mom’s. Nothing reached Jen or her brother until the second estate was done. Any registered plan or life insurance policy that named only the spouse as beneficiary followed the same route and ended up in an estate, instead of going straight to the children.
In the end, Jen and Mark received what was left of both estates, just as their parents wanted. Both wills named the two of them as beneficiaries, so it all came to them eventually. It just took longer, and it was a lot more work for Jen than it needed to be.
Jen and Mark were lucky. For some families, it doesn’t end that way.
When the wills name different people
Mirror wills work well when both spouses want the same people to inherit. But in a blended family, that often isn’t the case. In many cases, each spouse leaves everything to the other, then names their own children as the alternates. If both spouses die close together, whoever lives longer decides where everything goes, and the other spouse’s children can be left with nothing. I’ve written before about why a basic will isn’t enough for blended families, and this is one of the clearest examples of it.
Eleven days decided which children inherited
Paul and Denise married in their fifties. Paul had two sons from his first marriage, and Denise had a daughter. Their wills left everything to each other, and after that, to their own children. A fire started in their home one night in January. Paul died that night, and Denise died in hospital eleven days later. Because Denise outlived him, Paul’s entire estate passed into hers, and her will left everything to her daughter. Paul’s sons received nothing from their father’s estate. Neither Paul nor Denise would have wanted that.
The same thing can happen to couples who don’t have children. If both wills say everything goes to the spouse but don’t name anybody after that, the second estate has nowhere to go under the will. It’s ends up being distributed under the intestacy rules where the surviving spouse lived, which usually means that spouse’s own parents, brothers and sisters. The first spouse’s family can end up receiving nothing.
Everything went to one side of the family
Ravi and Beth had been together for twenty-two years. They didn’t have children, and their wills left everything to each other, with no one named after that. On a family holiday, their boat capsized. Ravi died that afternoon, and Beth died in hospital two weeks later. Ravi’s estate went to Beth. Beth’s will had no alternate beneficiary, so her estate, including everything Ravi had left her, went to her mother and her sister under the intestacy rules. Ravi’s mother, who’d lived with them for the last six years, received nothing.
When nobody knows who died first
Sometimes there’s no way to tell who died first. A crash, a fire or a plane going down can leave no record of the order. Every province and territory has a rule for this, but the rule isn’t the same everywhere.
In much of the country, each person is treated as if they outlived the other, so each estate is distributed as though the other spouse had already died. A few jurisdictions still presume the older person died first, which sends the older spouse’s estate through the younger spouse’s will. In Quebec, the deaths are considered to have happened at the same time when one of them would have inherited from the other.
These rules only apply when the order of death can’t be established. If a hospital record shows one spouse lived a day, a week or a month longer, the rules usually don’t factor into it. Some jurisdictions now build a short survival period into the law, but it’s measured in days. After that, whoever lived longer inherits, just as Linda did.
Life insurance has rules of its own. Outside Quebec, if the person insured and the beneficiary die together and nobody can say who died first, the beneficiary is generally treated as having died first, so the money is paid to the insured person’s estate instead.
The fix is a survivorship clause
A survivorship clause says a beneficiary has to outlive you by a set period, often 30 days, before they inherit. If they don’t, the gift goes straight to whoever you’ve named next.
With that clause, Ron’s estate would have gone directly to Jen and Mark, and so would Linda’s. Jen would have settled each of her parents’ estates on its own, instead of running her dad’s through her mother’s. Paul’s sons would have received their father’s estate. Ravi’s estate would have stayed with his own family.
But keep in mind that this clause only works if someone is named benficiary after your spouse. The second part of the fix is naming alternate beneficiaries in your will, and contingent beneficiaries on your RRSP, RRIF, TFSA, pension and life insurance. Those designations are separate from your will, so a survivorship clause in your will doesn’t change who receives them. I’ve covered more of this in the flip side of beneficiary designations.
If you’re getting ready to write or update your will, The Will Blueprint™ helps you work through your family situation, your Executor, your beneficiary designations and how your estate is divided, along with special circumstances like blended families. It creates a summary that flags what your lawyer needs to address, so you go into your appointment with these questions already on the list.
What changes depending on where you live
The rules for simultaneous death, how jointly owned property is treated when the owners die together, and whether the law gives your beneficiaries any survival period at all are set by your province or territory. Quebec, with its civil law system, has its own approach. These rules can change, so it’s important to confirm how they apply to you when you make or update your will.
Your lawyer or notary can tell you how these rules would apply to your family, and whether your will and the beneficiaries named on your registered plans and insurance would still carry out your wishes if you and your spouse died close together.
One question for your next appointment
Ron and Linda did what they were supposed to do. They saw a lawyer, they signed their wills and they named their children. Nobody asked them what would happen if they died a week apart, and it never occured to them to ask.
Jen and Mark did receive what their parents left them. It just took Jen longer than it should have at a time when she was grieving both of her parents.
If your will leaves everything to your spouse, ask your lawyer one question: “What happens if we die at the same time, or within days of each other?” For Ron and Linda, the answer would have made things easier on their daughter. For Paul’s sons and Ravi’s mother, it would have changed everything.
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Disclaimer: This content is for general information only and is not legal, financial, medical, or tax advice.
