It is not common, but it does happen: people die at the same time. This causes issues with inheritance since in some situations people in second or third generations die alongside each other, or sometimes spouses die at the same time. For example, assume a couple gets in a car crash. The husband dies instantly, but the wife is rushed to the hospital. The wife dies a few hours later despite the doctor’s best efforts to keep her alive. The couple does not have any children. If the husband’s property passes intestate (i.e. without a will), it should pass to his wife if she survives him. If she did not survive him, it would pass to his brothers and sisters or parents. If the wife survived him, the question remains as to whether all of the husband’s assets will be transferred to her estate.
What happens if people die at the same time?
Luckily, there is a uniform law on point that nearly every state has adopted to address this situation. The Uniform Simultaneous Death Act (USDA) was originally created in 1940, and the 1991 Act was incorporated into the Uniform Probate Code (UPC).1 Arizona has adopted the USDA. Under the law, if it cannot be proven that one individual survived another by a time of 120 hours (5 days), by law that individual predeceases the other.2 Thus, if a husband and wife were in a car crash and the wife did not survive the husband by 120 hours, no property will pass between them at death.3 The 120 hour rule applies to both testate and intestate succession. Under the 1993 amendment to the USDA, the 120 hour rule can be waived or excepted in certain situations.4 Some exceptions to the 120 hour rule include:
- the governing instrument contains language that deals explicitly with simultaneous death and the actual circumstances of the death match up with that.
- The governing instrument expressly says someone is not required to survive an event, including the death of another individual, by any specified period or survival must be proven by clear and convincing evidence
- The 120 hour rule violates the Rule Against Perpetuities or would result in unintended failure or duplication of a disposition.5
It can be difficult to determine whether or not someone survived 120 hours after another died. The individual who desires to establish that the beneficiary survived by 120 hours must do so by clear and convincing evidence.6 Not being able to prove this by clear and convincing evidence can have consequences. For example, if the two people in question were co-owners with a right of survivorship and you can prove that one survived the other by 120 hours, then half the property will pass as if one survived by 120 hours and the other half would pass as if the other survived 120 hours.7 If you do not establish the 120 hour survival rate by clear and convincing evidence, the property will pass in the proportion that the co-owner has to the total number of co-owners.8
The USDA outlines some rules for determining death once a court has jurisdiction to hear out a simultaneous death argument. These pieces of evidence can include (1) showing irreversible cessation of circulatory and respiratory functions or irreversible cessation of all functions of the entire brain and brain stem, (2) certified or authenticated copy of a death certificate issued by an official agency of the place where the death purportedly occurred including details of date, time of death, and identity of the decedent, (3) a certified or authenticated copy of any record or report of a governmental agency that an individual is missing, detained, dead, or alive, (4) without any of those prima facie pieces of evidence of death, establishing death by clear and convincing evidence, (5) someone who is missing for a continuous period of five years where he or she has not been heard from and whose absence is not explained after searching diligently, which leads to a presumption of death.9
The issue of simultaneous deaths also occurs on non-will documents such as annuities or life insurance policies. The USDA allows the 120 hour rule to apply to all governing instruments.10 The beneficiary of that policy may die simultaneously with the settlor or creator of the life insurance policy. In such situations, Arizona statutes say that the individual insured or the beneficiary designated on a life insurance policy who has died and when there is not sufficient evidence to show they died in any way but simultaneously, the proceeds of the policy or contract will be distributed to the insured as if the insured survived the beneficiary unless otherwise provided for in a policy or a contract. A.R.S. § 20-1127. Further, you can usually add a survivorship period to your will (i.e. someone cannot inherit unless they survive for a certain period of time such as sixty days) to lengthen the amount of time a beneficiary is required to survive.11 The 120 hour rule also does not apply to any property that is escheated to the state.12
Simultaneous death can lead to some tricky situations. However, since there is a uniform law on point, it should not be too difficult to get legal guidance. The problem is that these things take times and involve a lot of court procedures.
Find out more from the experienced estate lawyers at Ariano & Reppucci.
1 Legislative Fact Sheet – Simultaneous Death Act, UNIFORMLAWS.ORG, http://www.uniformlaws.org/LegislativeFactSheet.aspx?title=Simultaneous%20Death%20Act (last visited Jan. 27, 2015).
2 Simultaneous Death Act Summary, UNIFORMLAWS.ORG, http://www.uniformlaws.org/ActSummary.aspx?title=Simultaneous%20Death%20Act (last visited Jan. 27, 2015).
5 Uniform Simultaneous Death Act § 6 (1993), available at http://www.uniformlaws.org/shared/docs/simultaneous%20death/USDA_2011_Final%20Act_2014sep10.pdf.
6 Uniform Simultaneous Death Act § 3 (1993).
7 Uniform Simultaneous Death Act § 4 (1993).
9 Uniform Simultaneous Death Act § 5 (1993).
10 Uniform Simultaneous Death Act, supra note 5 at 2.
11 Mary Randolph, Survivorship Requirements In Your Estate Plan, NOLO.COM, http://www.nolo.com/legal-encyclopedia/survivorship-requirements-your-estate-plan.html (last visited Jan. 27, 2015).
12 Uniform Simultaneous Death Act § 2 (1993).