What Is Washington's 120-Hour Survival Rule in a Will?

A husband and wife are in the same car accident. He dies at the scene, and she dies in the hospital three days later. Each of their wills leaves everything to the other. Did she inherit from him during those three days?

In Washington, the answer is no. Under RCW 11.05A.030, a person named in a will has to outlive the person who made it by 120 hours, which is five full days, to be treated as a survivor. A beneficiary who is not shown by clear and convincing evidence to have survived that long is treated as having died first. The rule is a default, so a will can shorten it, remove it, or replace it with a longer period.

Where Does the Rule Come From?

The rule is part of chapter 11.05A RCW, Washington's version of the Uniform Simultaneous Death Act. Three sections do most of the work, and each covers a different kind of property.

RCW 11.05A.020 applies to rights that come from the probate code itself. If title to property, the passing of property, the right to elect an interest, or the right to exempt property, homestead, or a family allowance depends on one person surviving another, the 120-hour requirement applies. This is the section that governs inheritance when there is no will. It carries one built-in limit: it does not apply if the result would be that the estate goes to the state for lack of any other heir.

RCW 11.05A.030 applies to "governing instruments." RCW 11.05A.010 defines that term broadly. It covers a will, a trust, a deed, an insurance or annuity policy, an account with a pay on death designation, and a pension, retirement, or similar benefit plan. Whenever one of those documents turns on a person surviving an event, including someone else's death, the person has to survive the event by 120 hours.

RCW 11.05A.040 covers co-owners with a right of survivorship, such as joint tenants and joint account holders. That section works differently and is explained in the article on what happens to a joint bank account if both owners die at the same time.

What Problem Does the Rule Solve?

Go back to the couple in the accident, and add one fact: it is a second marriage, and each spouse has children from a first one. Call them Tom and Lisa. Each will says "everything to my spouse, and if my spouse does not survive me, to my children."

Without a survival period, Tom's estate would pass to Lisa at the moment of his death. Three days later it would pass again, this time under Lisa's will, to Lisa's children. Tom's children would receive nothing, and the same property would have passed through two estates in a row to reach that result.

With the 120-hour rule, Lisa is treated as having died before Tom for purposes of his will, because she survived him by only 72 hours. His estate goes to the alternate beneficiaries, his own children. Lisa's estate goes to her children, because Tom did in fact die first. Each spouse's property ends up with that spouse's own family.

How Is Survival Proven?

The standard is clear and convincing evidence, and the burden falls on the side that needs the survival to have happened. The statute says a person "who is not established by clear and convincing evidence to have survived" by 120 hours is deemed to have died first. If the proof is uncertain, the uncertainty is resolved against survival.

RCW 11.05A.050 supplies the evidence rules. A certified copy of a death certificate is prima facie evidence of the fact, place, date, and time of death. If no evidence disputes the times, a death certificate that puts one death 120 hours or more after the other establishes survival by clear and convincing evidence. In most cases the two death certificates settle the question.

What Are the Exceptions?

RCW 11.05A.060 lists four situations where the chapter does not apply. The first two are about the wording of the document. The chapter steps aside if the governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language fits the facts. It also steps aside if the instrument expressly says a person does not have to survive by any specified period, or expressly requires survival for a stated period.

The other two are technical. The chapter does not apply if the 120-hour requirement would make a future interest or a power of appointment invalid under Washington's rule against perpetuities statutes, RCW 11.98.130 through 11.98.160, or if applying it to several governing instruments would cause a gift to fail or be duplicated in a way no one intended.

Two smaller carve-outs sit in the main sections. Securities registered in transfer on death form under the Uniform TOD Security Registration Act are excluded from both RCW 11.05A.020 and RCW 11.05A.030. And the chapter recognizes in RCW 11.05A.070 that federal law may override it for some benefits, which is one reason to read the terms of an employer benefit plan and not assume the state rule controls.

Can a Will Require More Than 120 Hours?

Yes. Under RCW 11.05A.060, when a will expressly requires a beneficiary to survive for a stated period, the will's period applies and the 120-hour default drops out. A will might say that a beneficiary must survive by 30 days, or by 90 days, to take a gift.

A longer period covers more than a shared accident, such as one spouse dying a few weeks after the other. The trade-off is delay. A personal representative cannot distribute a gift until the survival period has run, so a very long period can hold up money a surviving spouse needs right away. The right length depends on the family, the size of the estate, and what other assets pass outside the will.

A will can also go the other way and say that no survival period is required. The statute allows it, which is a reason to read any existing will carefully before assuming the 120-hour rule applies.

What Happens to the Gift If the Beneficiary Does Not Survive Long Enough?

The 120-hour rule only answers who counts as a survivor. It does not say who takes the gift instead. That depends on the rest of the will. If the will names an alternate beneficiary, the alternate takes. If it does not, Washington's lapse rules decide whether the gift goes to the deceased beneficiary's descendants or falls into the rest of the estate. Those rules are covered in the article on what happens if someone in your will dies before you do. And if there is no will at all, the same 120-hour test applies to the heirs under the intestacy statutes, described in what happens if you die without a will.

Make the Survival Clause a Decision, Not an Accident

The survival clause is easy to skip when reading a will, and easy to leave out when writing one. For married couples, and especially for blended families, a short clause decides which set of children inherits if the worst happens to both spouses at once. The Law Office of Chad Foster reviews and drafts wills with those situations in mind. Call 425.785.8679 to talk with a Snohomish County estate planning attorney about how your will handles survival.