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Spokane Estate & Probate Lawyers / Blog / Estate Planning / Do You Need a Survivorship Clause in Your Washington Will or Trust?

Do You Need a Survivorship Clause in Your Washington Will or Trust?


Many Washington wills and trusts contain what are known as survivorship requirements. This basically means that a beneficiary must survive you by a specified amount of time in order to inherit from your estate or trust. Such requirements can help to avoid a situation where your property might end up passing under the estate plan of a beneficiary who dies at or near the same time as you. You can just imagine the court cases where experts fight over who might have been breathing longer.

Washington law imposes a 120-hour survivorship period for heirs of an intestate estate. So, if you die without a valid will, your probate estate would only pass to those heirs who lived another five days. Anyone who passed away within the survivorship period would be treated as if they died before you for purposes of inheritance.

Multiple Survivorship Clauses Lead to Washington Appeals Court’s Intervention in Probate

You need to be careful when deciding to include survivorship requirements in your own estate planning documents. Legal issues can arise after your death if there is any ambiguity in the language. A recent decision from the Washington Court of Appeals, Radliff v. Schmidt, provides a cautionary tale on this point.

This case involved what at first glance appeared to be conflicting survivorship periods in a married couple’s estate planning documents. The husband and wife in this case signed their respective wills while living in Oregon. They later moved to Washington and signed a community property agreement (CPA). A CPA allows a married person to pass their property directly to their surviving spouse (or registered domestic partner) upon their death without going through probate.

Here, the husband and wife’s Oregon wills included a survivorship requirement of four months. But their CPAs only required survivorship by 30 days. As it turned out, the husband died 75 days after the wife. Before he died–and after his wife’s death–the husband signed a new will leaving his estate to a number of individuals and organizations and largely disinherited his adult son.

Litigation subsequently arose between the son and the personal representative of the husband’s estate. The son argued the two survivorship provisions conflicted. A trial court agreed and, after considering additional evidence regarding the wife’s intentions, issued a judgment for the son. The estate then appealed.

The Court of Appeals reversed in favor of the estate. The appellate court said there actually was no conflict between the CPA and the wills. This was because the CPA contained additional language allowing the surviving spouse to “disclaim” their right to inherit under the CPA, in which case the deceased spouse’s will would control. Since the husband survived the wife by 30 days, his rights under the CPA remained intact. He then had the option to disclaim his CPA rights and allow his deceased wife’s will to control. But he never made such a disclaimer. As such, the property that passed from his wife to him under the CPA then passed under his superseding will.

Contact Moulton Law Offices Today

Survivorship clauses are just one of many legal issues that need to be addressed when making a will or trust in Washington State. Our Spokane estate planning lawyers can sit down with you and explain all of your options. Contact Moulton Law Offices today to schedule a consultation or attend one of our seminars.



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