Estate Planning Law
The 120 Hour Inheritance Survival Requirement
Certain states have strict survival requirements for heirs to inherit their shares of an estate. The general law is that someone must survive for 120 hours.
These laws help also help to determine who potential heirs might be. The first step in this legal process is always to determine:
- Who the heirs are
- How many heirs exist
From this point, the courts will wait 120 hours to make sure the first heir can inherit.
While estate law varies from state to state, you have options no matter where you are located. Low-cost do-it-yourself (D.I.Y.) wills, living wills, and powers of attorney are possible in some simple cases and can be found on our companion site, FindLaw.com. You may also want to consult with an estate planning attorney in your area for advice on your individual situation.
The person who passes away is called the “decedent” and is usually a family member or loved one. Heirs are only determined at the time of the decedent’s death. Before that time, the group of people who might be heirs is referred to as “heirs apparent.”
For this article, let’s use the example of Dan the decedent and Helen the heir. To start, Helen is just an heir apparent. One day, Dan passes away, so the attorneys look through the heirs apparent. It is decided that Helen is officially the heir. Now, Helen must live longer than Dan before she can inherit anything.
In the states with this requirement, the relevant potential heir must survive the decedent by at least 120 hours – or five full days. Once they survive that long they are considered an “heir entitled to inherit.” This law applies to Alaska, California, Texas, Kentucky, or Wisconsin.
For our example, this means Helen needs to live for five days after Dan’s death. Once she does, she is now the heir entitled to inherit.
This law may seem silly, but it is in place so that deceased people are not inheriting the property of a deceased person. It saves time because the whole process would have to start over with a new heir if the first one passed away right away.
A person who fails to survive the decedent by 120 hours does not inherit anything. This is obvious because they have now passed away.
Let’s say Dan passed away on a Monday, and Helen is immediately established as the heir. But Helen dies that Wednesday. That was only two out of the five required days. In legal language, attorneys or documents will say that Helen has “predeceased the decedent.” Even though she died after Dan, the law will still say she died before Dan.
This language is needed for “intestate succession,” which is the collection of laws that determine who inherits what property. These laws are very strict. For example, if Helen were to survive for 119 hours and then pass away, she would still not be entitled to any inheritance, because she was one hour short of 120 hours.
The law needs proof that you survived 120 hours to inherit something from a decedent. An attorney can help you establish evidence that you are still alive after the five days have passed. Normally, this is easy and obvious to prove.
It becomes a stickier situation if someone passes away after 121 hours and the exact time of death needs to be proven. That is when an attorney can step in and help gather evidence or witnesses.
The process will keep finding the next legitimate heir if the original heirs pass away. Let’s say Dan passed away, and Helen passed away the next day. Now, the inheritance will have to pass on to the next relevant heir. This could be Helen’s child or grandchild, or it may be a different relation to Dan.
If the attorneys discover Helen’s child, Nick, is the next heir, they will now wait 120 hours before Nick can inherit anything. If Nick dies before the 120 hours pass, the attorneys will find the next possible heir.
The downside to this process is that the heir apparent (Helen) cannot decide where Dan’s inheritance goes. The process may look like this example:
- Dan has $100,000 of inheritance
- Helen is the heir but dies before 120 hours
- Helen has an estate plan that says all her money will go to her sister, Sarah, and nothing will go to Nick.
- Helen’s estate plan does not matter because she never took legal ownership of Dan’s money
- This is still Dan’s $100,000
- Nick will get the $100,000 as Dan’s closest heir
- Sarah will get only what Helen owned at the time of her death
In short, Helen’s estate plan can only determine what Helen leaves to her own heirs or other beneficiaries. In this case, the inheritance is still Dan’s property. Only Dan’s wishes are followed at this point.
In most cases, the heirs down the line will still be entitled to some inheritance according to their relationship to the decedent. Probate Codes usually go to great lengths to detail the order of intestate heirs, which includes predeceased spouse’s children, parents, or siblings.
The states that use this 120-hour survival requirement do not want anyone’s estate, property, or money returning to the state. Estates returning to the state is called “escheat.” It would mean Dan’s $100,000 would go the state he lives in because the attorneys could not find a surviving heir in time.
Luckily, the state is willing to waive the survival requirement if it avoids escheat. States want people’s inheritance to go to their heirs, so they can change the rules to help the process.
For example, if Helen dies at 119 hours, but there is no other heir of Dan’s, the courts may say Helen is still the heir. This only applies when escheat is a possibility.
120-hour survival requirements may sound confusing, but they are usually a useful guideline. The rule attempts to:
- Streamline the process of determining heirs
- Avoid anything going to the state in escheat
- Ensure the right people inherit
Find an attorney to help you understand this process and the specific requirements in your state. If your state does not apply this rule, then your estate plan will determine where the inheritance goes.
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