Survivorship clauses in Wills and when to avoid them

A survivorship clause is exactly what it sounds like; a clause in a will that makes a gift to a beneficiary conditional upon them surviving the testator by a set period of time. While these clauses are commonly used in modern wills, it’s clear that many people don’t appreciate the negative effects they can have on an estate.

There are two main reasons that survivorship clauses are used:

1. To avoid the first estate passing through probate twice in quick succession, saving on administration costs; and
2. To impose some control over the eventual destination of assets. This control is only minimal though, considering most survivorship clauses are expressed as 30 days.

While these seem like compelling reasons to use a survivorship clause, unfortunately the potential negative consequences outweigh the positives when we add inheritance tax (IHT) to the mix. When dealing with married couples or civil partners the IHT consequences of a survivorship clause will either be neutral or cause an IHT problem that wouldn’t otherwise have existed.

When can they cause an issue?

Where one spouse has an estate in excess of the nil rate band (NRB) and the other has an estate below the NRB the survivorship clause can be detrimental as it will lead to a wasting of one spouses NRB. Consider the below example:

Harold and Wendy are married and have wills leaving everything to each other. The substitute beneficiaries are their children. Harold’s estate is worth £600,000 and Wendy’s £300,000. They have full NRB and RNRBs available. They are involved in an accident in May 2019 and Harold dies first, followed by Wendy 5 days later.

If they had a 30-day survivorship clause, Harold’s estate will pass to their children. His NRB will be used against the first £325,000 passing from his estate to his children, as well as £150,000 RNRB against his share of the property and he will pay £50,000 IHT. Wendy’s estate will also pass to the children and there will be no IHT.

If they didn’t have a survivorship condition, then the situation would have been better for them. Harold’s estate would have passed to Wendy IHT free. Wendy would then pass £900,000 worth of assets to the children, but would have had her full NRB, RNRB, and both transferable allowances available so would have paid no IHT.

A survivorship clause can also create an IHT problem if it overrides commorientes and the couple die together in circumstances where it’s not possible to determine who died first. This is due to an interesting interaction between section 184 of the Law of Property Act 1925 which determines how the order of deaths is determined, and section 4(2) of the Inheritance Tax Act 1984 which determines how estates are valued for IHT when deaths are simultaneous.

According to the Law of Property Act 1925 where two or more people die together the deaths cannot be simultaneous. It is presumed that the younger of the pair survived the older. However, according to the Inheritance Tax Act 1984 where two people die together they do die simultaneously. This leads to an interesting result for spouses who die together leaving their estates to each other. Consider the next example:

John and Judy are married and have wills leaving everything to each other with no survivorship clause. Everything passes to their nieces and nephews in default. They have an estate of £600,000 each.

They die in a car accident and it can’t be known who died first. John is the eldest so under s184 it is presumed that he died first, and his estate therefore passes to Judy. There is no IHT on his estate as the spouse exemption is available. Judy’s estate passes directly to the children as John has predeceased her. For IHT purposes her and John are deemed to have died simultaneously so her estate excludes the value of John’s estate. Judy has her own NRB available as well as the transferable allowances from John’s estate. This means that £1.2m of assets have passed to their beneficiaries IHT free.

In this example if their wills had included a survivorship clause the IHT saving would not have been possible, and there would have been a combined IHT bill of £220,000!

If a survivorship clause is used, the issue of override commorientes can be avoided by including a simple statement to negate the survivorship condition if the testator and their spouse die together in circumstances where it cannot be known who died first.

It’s not fair to say that survivorship clauses have no valid uses in modern will drafting, as they’re certainly still useful for unmarried couples who don’t have any transferable NRBs. Consider though that where married couples are leaving their estates to each other and have the same default beneficiaries there’s a good argument that a survivorship clause is unnecessary, or at worst can cause issues in situations where they die together or in quick succession.