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  • Writer's pictureJenny Rozelle, Host of Legal Tea

Cautionary Tales - Simultaneous Death Provisions - Episode 148

Hey there, Legal Tea Listeners –This is your host, Jenny Rozelle! Today’s episode of Legal Tea is the “cautionary tales” topic. And on these “cautionary tales” episodes of Legal Tea, we normally talk about real-life cases with real-life clients that are things me or my office have worked on -or they are things that I think are generally good things to be aware of, so you don’t turn into a cautionary tale on my Legal Tea podcast one day! Well, today is a little bit of both – because it’s a very real-life story, but it’s definitely something you should be aware of too. Today is different, though, because it’s going to be a personal-to-me story involving simultaneous death provisions in an estate plan. Let’s dive into my personal story first, then we can talk about takeaways and what you can learn from this episode on simultaneous death provisions.

So in June of 2014, my Uncle John, Aunt Siby, and (second) cousin Katrina were traveling by car to Washington, D.C. from their home in Minneapolis, Minnesota. Prior to leaving on their trip, my Uncle John had e-mailed stating that they would be traveling through Indianapolis on their trek home and asked if anyone would be around – insinuating a potential meet-up. Several members of the “Indiana crew” were unavailable and/or out of town that specific weekend, but my (great) Aunt Linda and I had the weekend open. We then set some tentative plans and my Aunt Siby later confirmed, “That sounds great. We should be able to make it work.”

About a week later, on June 21st, I was driving down Meridian Street in Indianapolis heading home and my cellphone rang. Now, if you know the area, Meridian is super busy. It was John calling. For a split second, I almost did not pick up the call telling myself, “Oh, I’ll call them back just as soon as I get home.” since Meridian is so busy and it has very narrow lanes. Instead, I had a moment of clarity and I specifically remember telling myself, “Jenny, it’s your Minnesota family! Just grab the call and be sure to watch the darn road.” So, I did. In John’s soft voice, “Well, hello Ms. Jenny!” In the fifteen minute conversation, we chatted about work, law school (I was in school at the time), and their time in Washington, D.C. (I was so excited to see pictures as I had, at that time, never been to D.C. – And I knew they would have taken some great shots! They always took great pictures.

We hung up and I got home. I had started getting ready my phone rang a second time. This time, it was my cousin, Jason. I picked up and before I could even finish “hello” he said, “Jenny, I don’t know what has happened, but there’s been a car accident and Katrina has been airlifted to Riley Hospital.” Riley Hospital is in downtown Indianapolis. At that time in my life, I was living very close to downtown. So, since I was the closest to the hospital, I threw on a pair of shoes and sprinted out the door to rush to Riley. To this day, I remember exactly what I was wearing in this moment. That gives me chills…

Well, I arrived at the hospital, walked into the emergency room, and told the individual at the front desk who I was there for. She immediately grabbed my arm, and rushed me to the back. Looking back, I should have realized how serious things were in that moment. There’s all these people in the Emergency Room – and they reacted that way when I said who I was there to see. As I was approaching Katrina’s room, my phone rang. This time, it was my Mom. Assuming she had heard the news, I picked up and said, “Mom, I just got to the hospital. They just brought me back…” My mom stopped me. She proceeded to tell me, “Jenny, I’m on my way. I need to tell you something though, and you cannot react in front of Katrina. John and Siby did not survive the accident.”

I stepped out of Katrina’s line of sight and fell to the floor. I was taken to another room to “cry it out” –Within a few minutes, my mom arrived. Seeing her (and her seeing me) brought the strength we needed to be able to “toughen up” and be there for Katrina. Together, we walked into Katrina’s room, who was in every brace and cast I think is humanly possible. We told her, “Aunt Judy and Jenny are here, Katrina. We aren’t leaving.” We stayed at the hospital for the next forty-eight hours (maybe more—hours and days were a blur) and repeatedly kept asking ourselves, “How did this happen? Why them? What about Katrina?” 

Everything that transpired after the accident was, for a lack of a better word, a total and absolute heart-breaking mess. Was Katrina going to be able to recover? Was she going to be able to walk again? What about John? Siby? Their estates? Did they have Wills? Or any type of estate plan at all? What happens now that they are both gone? What happens in a “simultaneous death” situation? What about the semi-truck that barreled into them? Was the driver “over” his allowable time on the road? Is this considered a wrongful death suit? Is the trucking company going to help cover Katrina’s expenses? Do we need lawyers? So. Many. Questions. At that time, there were little to no answers.

Katrina remained at Riley Hospital for a few weeks – was in-and-out of surgeries – and ended up being transferred (via a private airplane) to a hospital in Minnesota, so that she could be closer to home. Fast forward to today, which is actually ten years later, she fully recovered from that tragic accident, and is a beautiful and happy woman. She graduated high school, went to college, and is a remarkable young woman that experienced how precious life is … way too young. From when I first saw Katrina post-accident to now, I cannot help but to appreciate medical science. It is amazing.

Settling John and Siby’s estates, however, was another story. John and Siby were, what I like to call a “blended family” – that is, John had children (not with Siby) and Siby had children (not with John). One of John’s sons was the Executor, the person “in charge” of the estate, of John’s Will while one of Siby’s sons was the Executor of Siby’s Will. Because John and Siby had Wills, their estates had to go through probate, which is the court proceeding that occurs when someone passes away. Probate is often an emotional process, and sometimes lengthy. In their situation specifically, emotions were heightened due to the circumstances, which consequently created an even more lengthy probate process. Then, on top of that, there was a wrongful death lawsuit filed against the trucking company, which proceeds would eventually enter into the estate. As you can see, it was quite complex. It ended up taking about a year to settle everything. In hindsight, I’m surprised it didn’t take longer.

So, the purpose of sharing this story is because my Aunt and Uncle’s Wills did not have what are called “simultaneous death” provisions in their estate plan. Because of that, it actually created some extra hurdles and headaches to determine who, in all likelihood, died second. This is critically important because their Wills’ beneficiaries were different – after all, like I said earlier, they were a blended family and had their respective children as beneficiaries after each other, of course. But since they both passed away, the unfortunate question was – who died second and whose Will governs? Thankfully and ultimately, all of the kids ended up coming to an agreement of how things were divvied out – but you can imagine there are many, many families that would not be able to agree. In fact, I’d be lying if I said there weren’t some hurt feelings with my family (my cousins). Emotions were already tremendously high – then money got thrown on the table.

So, WHAT is a simultaneous death provision then? Well, it’s a fairly simple provision in an estate plan to dictate what would happen if there were back-to-back deaths – whether between a couple or even between someone doing their Will or Trust and a beneficiary. Oftentimes, the provision will say something like, “If we die and the timing of our deaths cannot be established, then we deem XYZ happens …” and like I said, there’s usually a provision relating to a back-to-back death between who did their Will or Trust and a beneficiary, and those provisions will say something like, “If any beneficiary is living at the time of our death, but fails to survive thirty (or whatever number) of days, then XYZ happens.” Maybe it’s the lawyer in me, but XYZ is important – because IF back-to-back deaths happen between a couple or a beneficiary, then XYZ is going to happen.

Now, the handy dandy thing about these types of provisions is that it gives express direction and instruction to your Executor or Trustee on what specifically to do in the event something like that unfortunately happen. Rather than relying on the beneficiaries to have to agree to something, it’s already spelled out. Something to know about these provisions is that I’d have to guess there are plenty of attorneys out there that do not have a provision like this within their documents. I’d say most estate attorneys’ documents do because we live-and-breathe this world every day. (I’d also make the argument this is why when it’s time to #DoYourEstatePlan, work with an estate attorney. Not with your buddy who is an attorney, but doesn’t practice in this field. Not the general practice attorney that does every type of case that walks through the door. No shame on any of them – but they don’t live-and-breathe this world every day like an estate attorney.)

Now, as I start to wind down and wrap up this episode, I’d be remiss if I did not mention that this year, 2024, will be the ten year anniversary of losing my Uncle John and Aunt Siby. Every summer, our family gets together (typically in Galena, Illinois) for a family reunion—Galena because it is a good “halfway” between Minnesota and Indiana. (Side note: If you haven’t been to Galena, you should check it out. Just the cutest town. It’s impossible to not like it!) Anyway, it’s absolutely crazy to think it’s been ten years already. It feels like yesterday.. Like I said, I legitimately remember what I wore when I went rushing to the hospital. It was a white and pink dress, and because I rushed out the door – I put on tennis shoes. I certainly didn’t win any type of fashion award. Shew!

I remember that the car accident happened just a few weeks prior to the scheduled 2014 family reunion. It was not until the 2015 family reunion that individuals were signing paperwork to actually settle and close the estate. The 2024 reunion will be taking place in a few weeks, and it still does not seem real that they will not be there. But, the accident was real. They will never be at a reunion again. Luckily, I, as well as all the family and friends of John and Siby, have so many good, fun memories of them even though their lives were cut too short. Those memories help all of us move forward and continue on with this crazy thing called “life” without them.

That sure was a deep and personal episode. My goodness! Alrighty … let’s wrap up this episode. Let’s shift to a sneak peak of next week, which we’re circling back to the “current trends” topic where we talk about things that are going on currently that impact my estate and elder law world – or maybe, things that I have stumbled upon on the news or social media that is relevant to this podcast. Well, on next week’s episode, I’m going to say … ‘tis the season of people and families traveling because schools are out (or almost done). So, I’m going to talk a little about “different triggers” of estate planning … as in people often wait to finally do their plan until some type of trigger. Sometimes, it’s a cool trip, sometimes, it’s a health event, etc. So, I figured it’d be a good time to talk about that + I am going to make a bit of a special announcement, too, on next week’s episode, so tune in! Until then, be well and talk soon!




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