Simultaneous death

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Simultaneous death is a problem of inheritance which occurs when two people, at least one of whom is entitled to part or all of the other's estate on their death (usually a husband and wife) die at the same time. This is usually the result of an accident, but in some cases may occur as a result of homicide. Under the common law, if there was any evidence whatsoever that one party had survived the other, even by a few moments, then the estates would be distributed in that order, though the decedents could write (or have written) a clause in the will that requires their property to be distributed as though each had predeceased the other.

Some wills now include Titanic clauses (named for the RMS Titanic, which caused many simultaneous deaths among testators and executors). These clauses lay out explicit instructions for dealing with simultaneous death.

United States

In order to alleviate problems of proving simultaneous death, many states in the United States have enacted the Uniform Simultaneous Death Act, which provides that each spouse will be treated as though they predeceased the other if they die within 120 hours of one another, unless a specific clause in the will deals with this particular possibility.

However, the Act also states that the 120-hour rule is not applicable if the end result would be that the estate is intestate, and would therefore be escheated to the state.

England and Wales

The common law of England and Wales (also Australia) does not accept the possibility of simultaneous death. Where there is no satisfactory medical evidence as to the order of death, the elder of the two is deemed to have died first. This can cause difficulties where for example the elder person had children prior to marriage. The rules can be ousted if inappropriate by an explicit provision in a will. Wills generally have a survivorship clause, typically of 30 days, so that both partner's estates are dealt with as though they were already widowed at the point of death; in cases of intestacy, the survivorship clause is set at 28 days.

However it is Her Majesty's Revenue and Customs's longstanding practice to apply a concessionary treatment for inheritance tax purposes in such cases which reduces the burden on surviving family members.

References

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