A survivorship clause requires the surviving spouse to survive the decedent by a specified period before inheriting under the estate plan. If the surviving spouse dies within the survivorship period, the property passes as if the surviving spouse had predeceased, typically redirecting it to the credit shelter trust or other beneficiaries.
Survivorship clauses serve important practical purposes, but they conflict with the marital deduction. A condition that could terminate the surviving spouse’s interest is, by definition, a terminable interest. Congress resolved this conflict with the limited survivorship exception under IRC § 2056(b)(3).
The Limited Survivorship Exception Under IRC § 2056(b)(3)
A bequest subject to a survivorship condition is not a nondeductible terminable interest if two conditions are met: the survivorship period does not exceed six months, and the surviving spouse actually survives the stated period.
If the surviving spouse survives the full period, the condition is treated as if it never existed for marital deduction purposes. The deduction is allowed in full.
If the surviving spouse does not survive the period, no marital deduction is allowable. The property passes under the estate plan’s alternate provisions (typically to the nonmarital trust or other beneficiaries), and there is no tax benefit from the marital deduction.
Why Estate Plans Include Survivorship Clauses
Survivorship clauses serve three practical purposes beyond the simultaneous death scenario:
- Avoiding double administration. If both spouses die in close succession (a car accident, a shared illness), a survivorship requirement prevents the property from passing through two separate estates. Without a survivorship clause, the property passes to the surviving spouse’s estate and requires a second probate.
- Preventing estate stacking. If the surviving spouse dies shortly after the decedent, the property inherited from the decedent could be taxed in both estates (subject to the IRC § 2013 previously taxed property credit). A survivorship condition that redirects the property to other beneficiaries avoids the second estate tax entirely.
- Enabling the conditional equalizer plan. The six-month survivorship period can serve as the trigger for a conditional equalizer plan, which uses the standard optimum marital deduction if the surviving spouse survives six months (when deferral is most valuable) and switches to an equalizer formula if the surviving spouse does not survive (when quick succession makes equalization more beneficial).
For a detailed explanation of how this works, see our guide to equalizer planning and when paying tax at the first death reduces total taxes.
180 Days vs. Six Months
Many estate planners specify the survivorship period as 180 days rather than “six months.” The reason is a technicality in how calendar months are counted. Six calendar months from a death on March 31 would be September 30 (or arguably August 31, depending on interpretation). Since not all months have the same number of days, the six-month endpoint can be ambiguous.
Specifying 180 days eliminates this ambiguity. A 180-day period is never longer than six calendar months, so it always satisfies IRC § 2056(b)(3). It also provides a clear, unambiguous endpoint that the personal representative can calculate without legal interpretation.
Simultaneous Death Provisions
The Uniform Simultaneous Death Act presumes that each decedent survived the other when the order of deaths cannot be determined. This creates anomalous results in estate planning. If the decedent’s will leaves everything to the surviving spouse with unknown death order, the decedent’s estate deems the surviving spouse to have survived (qualifying for the marital deduction), while the surviving spouse’s estate deems the decedent to have survived the surviving spouse.
Estate plans should include a specific provision addressing simultaneous death, typically providing that the surviving spouse is deemed to have predeceased the decedent if the order of deaths cannot be determined. This ensures the property passes through the decedent’s nonmarital trust and other provisions rather than passing to the surviving spouse’s estate only to be taxed there.
Drafting Best Practices
Every estate plan for married couples should include a survivorship clause with a period of 180 days (or shorter), combined with a simultaneous death provision that deems the surviving spouse to have predeceased if the order of deaths cannot be determined.
The survivorship clause should be drafted as a condition on the marital bequest, not as a general provision that applies to all bequests. The nonmarital trust beneficiaries (children, other family members) should not be subject to the same survivorship requirement.
The survivorship clause should be coordinated with the trust’s administrative provisions. During the survivorship period, the personal representative must manage the estate without knowing whether the marital deduction will be available. The estate plan should address who receives income during the survivorship period, whether interim distributions can be made, and how the personal representative should invest estate assets while the survival condition remains unsettled.