Many wills and trusts include a survivorship period. A survivorship period stipulates that named beneficiaries cannot receive their inheritance unless they survive for a specified period after the decedent’s passing.
Here is an example of a short, general survivorship period clause in a will or trust:
“Beneficiaries must outlive the undersigned by [number of days] to inherit property and assets under this [will or living trust].”
In this article, a Fort Smith estate lawyer addresses why Arkansas inheritance laws recognize survivorship periods, the lengths of survivorship periods, what happens if a will or trust doesn’t have a survivorship clause, some rules that apply to inheritance periods, and where to find legal help for your estate plan.
Why Do Arkansas Inheritance Laws Recognize Survivorship Periods?
Survivorship periods are essential if a named beneficiary does not outlive the decedent. The concern is that if you die and your beneficiary dies shortly thereafter, your assets will be distributed according to your beneficiary’s estate plan—not yours. In other words, you could lose control over who becomes the new beneficiary of your assets.
Let’s say that Mark dies and leaves his estate to his daughter, Haley. He also designates his favorite charity as an alternate beneficiary. Under these terms, Mark’s assets would transfer to Haley—unless she was not alive at the time of his passing, in which case the charity would receive the estate.
If Haley were to pass away after the survivorship period, Haley would receive Mark’s assets, and they would be distributed according to Haley’s estate plan. However, if Haley were to pass away during the survivorship period, Mark’s assets would go to the charity. In this situation, the assets would never go to Haley’s estate and Mark’s estate plan would continue to dictate asset distributions.
How Long is a Survivorship Period in Arkansas?
Per A.C.A § 28-10-202 of the Uniform Simultaneous Death Act, Arkansas’s survivorship period is at least 120 hours—the equivalent of five days—from the date of the decedent’s death. It typically lasts up to 60 days.
You can theoretically designate a longer survivorship period by including a specific clause in your estate plan. However, it is generally inadvisable to impose limitations over 60 days since this strategy could jeopardize tax-free estate asset transfers or put marital deductions at risk. If the survivorship period exceeds 120 days, for example, the spousal estate-tax-free transfer of assets may be jeopardized. While most people do not have to worry about the federal estate tax, a lengthy survivorship period is generally unnecessary.
What Happens if a Will or Trust Doesn’t Have a Survivorship Clause?
If the estate plan does not include a survivorship clause, Arkansas’ default survivorship period applies. The default rule is that all named beneficiaries must wait a five-day (120-hour) survivorship period before making claims. This rule applies regardless of which estate planning documents are used, but it generally doesn’t apply to individuals who inherit according to beneficiary designations.
These rules will apply by default if you do not have an estate plan or will in place. Consequently, your family will have zero control over how the court handles what they believe are your final wishes. It’s important to work with an experienced estate planning lawyer to ensure that your estate is settled as you intended.
Can You Contest Survivorship Periods?
An interested party may contest a survivorship period in certain circumstances, such as situations involving improperly drafted documents. Proper drafting significantly reduces the likelihood of objections to your estate plan and its clauses. Working with an experienced estate planning lawyer can help you avoid legal issues related to your estate planning documents.
Other Rules that Apply to Inheritance Periods
Relatives born after your death but conceived before it are known as posthumous relatives. They have the same inheritance rights as someone born while you were alive. Posthumous relatives are only inheritable if they are your direct descendants, such as children, grandchildren, and great-grandchildren.
Survivorship is also used to transfer sole ownership of a property upon the death of a joint owner of the property. To grant a right of survivorship, the documentation must expressly state this right. A survivorship deed—also called a joint tenancy with rights of survivorship—is often significantly more challenging to contest than a will. The default survivorship period generally doesn’t apply to surviving co-owners in joint tenancy.
Get Legal Help with Your Arkansas Will or Estate
Rights of survivorship state that a beneficiary cannot inherit from you unless they outlive you. A survivorship clause is generally a good idea for many estate plans. However, there are times when they don’t make sense.
No matter where you are on your estate planning or probate journey, it can be challenging to know what options are available. If you’re drafting a new estate plan or trying to make sense of your situation, the legal team at Milligan Law Offices is here to help you navigate the associated legal complexities so that you can achieve the result you want.
We offer initial consultations to prospective clients who need legal answers and advice. Schedule a meeting with Milligan Law Offices now by calling (479) 783-2213 or by messaging us here.