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Survivorship Period: The Five-Day Survival Rule

Survivorship Period: The Five-Day Survival Rule

In a will, will-writers can specify a survivorship period where the beneficiary must survive the will-writer beyond a specified period, or else their gift will be lapsed and distributed to someone else in the will. Essentially, a survivorship period gives the will-writer more power over how their estate is to be distributed. If a beneficiary lives past the survivorship period, the original testator’s estate will then be distributed according to the beneficiary’s will, once he/she has deceased. When a survivorship period is not specified in the will, there is a five-day survival rule by law in BC.

Five-Day Survival Rule

The survivorship period should consider the anticipated survival time of the beneficiaries and the overall time to administer the estate.

Under section 10 of the Wills, Estates and Succession Act, in order to be eligible to receive an inheritance, the beneficiary must survive the deceased by five-days or longer. If a beneficiary named in a will dies within five-days of the will-writer’s death, they are deemed to have died before the will-writer for all estate purposes. Will-writers cannot shorten the survivorship period; however, they are able to extend it. It’s common for will-writers to extend the survivorship period to 30-days. 30-days after the testator’s death, it’s reasonable to expect that the beneficiary has received or is close to receiving their inheritance. Ideally, the survivorship period is the exact length of the administration process.

If a joint asset is held between two people, each dying within five-days of each other, the asset is given one half to each joint owner. As an example, Jack and Jill jointly own a house together. Jack passes away on May 22nd, 2020 and Jill passes away on May 25th, 2020. Under the five-day survival rule, Jill would not be entitled to anything in Jack’s will and his estate would be distributed as if Jill deceased before him; however, since it’s a jointly owned property, Jack and Jill would each receive 50% of the property’s value, to be distributed according to each of their wills.

Benefits of a Survivorship Period

While it’s clear what the survivorship period and five-day survival rule do, it’s not always clear what their purpose is. Well, in some cases, it can be difficult or even impossible to determine who dies first. In a fatal car crash for example, it’s impossible to know whether one passenger survived the other, maybe by 15 minutes or 30 seconds. It’s unreasonable for the courts to guess and have one person receive an inheritance, while the other wouldn’t. The five-day survival rule is a general rule of thumb to avoid this problem from arising, regardless of whether it was specified in the will or not. Further, having a longer survivorship period can eliminate the scenario where a beneficiary is never in possession of an inheritance and it is immediately gifted according to their own will. To clarify this, let’s take a look at an example.

Sydney writes a will splitting her estate equally between her brother, Drew, and her sister, Taya. Sydney does not specify a survivorship period, so the five-day survival rule is in place. Sydney passes away and Drew passes away exactly one week after her. In this case, Drew would still be entitled to his share of Sydney’s estate because he lived longer than the survivorship period. At the time of his death, it’s extremely unlikely that Sydney’s estate had been administered and he was even in possession of his share of her estate. Once Sydney’s estate is distributed to Drew and Taya, Drew’s share would be immediately distributed according to his own will. In Drew’s will, he wished to give everything to his spouse. Because of the five-day survival rule, half of Sydney’s estate went directly to Drew’s spouse. If Sydney had a 30-day survivorship period specified in her will, Drew’s share of her estate would have been given entirely to Taya instead.

Drawbacks of a Survivorship Period

While survivorship periods pose a number of benefits, there can be problems that arise in some rare circumstances. When wills aren’t carefully prepared, the five-day survival rule could have beneficiaries receiving double the inheritance they were intended to receive! If spouses have mirror wills, wherein a beneficiary receives a gift after the last surviving spouse has passed away, the beneficiary could receive the gift under both wills if it’s not properly written. Typically, this only arises when the will-writer is unaware of the five-day survival rule and does not specify a survivorship period.

If you’re unsure how long a survivorship period you should write and want to avoid any double inheritances, contact an experienced lawyer today. We can ensure that your estate is distributed exactly as you see fit, mitigating any potential risks arising from the five-day survival rule.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

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