Why you may need a ‘Titanic’ clause in your will

Contemplating your own death is hard enough for most people, but spouses drafting wills should consider the possibility they will die together. 

The chances of an accident or disaster that claims both spouses’ lives may not be very high, but nobody can predict the future, and we’ve probably all heard stories about a partner who died of a “broken heart” within days or weeks of their lifelong love. 

Under s. 55 of Ontario’s Succession Law Reform Act, when spouses die at the same time or their order of death can not be determined, the property of each is disposed of as if they had survived the other.

Each province has its own rules around simultaneous deaths, with a number of Canadian jurisdictions automatically deeming the older spouse to have died first for the purposes of estate administration. 

However, this can lead to unfair outcomes and unnecessary duplication of administration costs and probate fees, depending on the specifics of each person’s bequests and gifts. 

To get around the issue, many wills have survivorship clauses built into them, requiring that spouses or other beneficiaries outlive the testator for a certain period before they can inherit, and setting out alternative instructions in case they die simultaneously or within a short time of each other.   

The length of the period in these provisions – sometimes known as “Titanic clauses” – typically comes in at 30 days, but it can be longer or shorter depending on the testator’s preference. 

They got their name from a story on board the famous ship and the reported determination of passenger Ida Straus to stick by the side of her husband Isidor – one of the co-owners of the Macy’s department store – rather than leave on a lifeboat. The elderly pair were said to have been seen arm-in-arm on deck before perishing together in the water.  

Whatever your situation, an experienced trusts and estates lawyer can help you determine whether you need a survivorship clause and draft a will tailored to your needs.  

Disclaimer: The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web ite are advised to seek specific legal advice by contacting members of Laredo Law (or their own legal counsel) regarding any specific legal issues.

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