How is 'predeceased' evaluated in a will when 2 deaths occur very close together

October 13, 2009 9:20 PM

If person A leaves something of value to person B in their will, with the stipulation that it be left to person C if B should predecease A, what happens if A & B die semi-simultaneously [say both are in the same car accident] and it can't be determined who died first?

Presumably if it could be proved that B died after A, then B's heirs would inherit, but if there are no witnesses, proving time of death isn't [as far as I know] terribly accurate.

Are there legal 'tiebreakers' such as "you must be alive at probate to inherit", or "if the time of deaths can't be distinguished, B is considered to have predeceased A"?

Or do the heirs have to fight it out in court?

If you have knowledge of the legal situation, please state the jurisdiction you're referring to.

I'm asking this out of idle curiosity, not because I need legal advice.

posted by HiroProtagonist to law & government (13 comments total)

The Uniform Simultaneous Death Act handles this: http://en.wikipedia.org/wiki/Uniform_Simultaneous_Death_Act
posted by Ironmouth at 9:26 PM on October 13 [3 favorites]

In Victoria, Australia, if a couple die together in an accident, there is a rule that specifies that the elder of the two is deemed to have died first. Not exactly your scenario, perhaps, but there are such rules.
posted by AnnaRat at 9:28 PM on October 13

It depends on the jurisdiction. Some states have adopted the Uniform Simultaneous Death Act, which specifies that "if two or more people die within 120 hours of one another, each is considered to have predeceased the others. When a will or other document provides for this situation explicitly, the Act does not apply."

The Act has been adopted in Alaska, Arizona, Arkansas, Colorado, the District of Columbia, Hawaii, Kansas, Kentucky, Massachusetts, Montana, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oregon, South Dakota, Utah, Virginia, and Wisconsin.

In other states there are statutes that are similar to but different from the Act. In still other states, wills can give the same effect through careful drafting of a simultaneous death clause.
posted by jedicus at 9:31 PM on October 13 [1 favorite]

I've read more than one mystery novel which centered around situations like this (B dies first, say, so B's heirs murder A and try to make the timing appear different). Presumably the Simultaneous Death Act would just make the plot that much more convoluted.
posted by hattifattener at 9:34 PM on October 13

The "same car accident" scenario you describe has troubled estate lawyers for long enough that they made a phrase for it: a common disaster. ("Common" in the sense of "pertaining to everyone," not "readily available.")

At common law, if the writers of the will had not provided for this problem, they would look for any possible evidence that one person may have survived a little longer than the other. A classical example is that if two people were involved in some kind of crash, the person farther from the impact would have survived longer.

Naturally, this was messy, and legislatures started enacting statutes like the aforementioned Uniform Simultaneous Death Act. I believe all the states in the US have laws regarding the circumstance, even if they didn't use the Uniform Act. I don't practice estate law, but I believe that in California, where I live, they consider each person to have predeceased the other only if there is no clear and convincing evidence about who died first. This sort of thing, and in some situations, the 120-hour rule from the Uniform Act, is the sort of thing the heirs would have to sort out, possibly in court.

(IAAL. As you stated, this is a pure hypothetical, but just for the record: this is not legal advice.)
posted by tellumo at 9:57 PM on October 13

I remember reading this one grisly, pre-Uniform Simultaneous Death Act case in law school where a couple was in a car accident and they both were decapitated. When paramedics arrived, blood was spurting from the wife's neck but not the husband's. This showed that her heart was still beating--since she survived for a few minutes longer, she inherited.
posted by lockestockbarrel at 10:06 PM on October 13

Years ago my wife and I asked a very similar question of our lawyer while making out our wills. We live in Canada. His answer for Ontario, Canada was about the same as AnnaRat's. The law states that the younger of the two would have lived the longest all thing being equal otherwise. That was years ago and things may be different now. But I doubt it.
posted by Taurid at 10:07 PM on October 13

This is classic Legal Fiction.
posted by jeffamaphone at 11:21 PM on October 13

Here in the UK it is usual to say something like
"any person who does not survive me by at least 28 days shall be deemed to have predeceased me for the purpose of ascertaining the devolution of my estate and the income thereof"
A bit cumbersome, but solves the problem you had in mind.
posted by muckybob at 4:19 AM on October 14

Tellumo has it. The statute in Michigan provides that a person who dies within 120 hours of another is considered to "predecease" the other. It is common for a will or trust to include a longer survival period, such as 28 days, to deal with accidents in which one might live for a few days before succumbing. Unless the document says otherwise, that period would also apply in the case of a coincidental death.
posted by megatherium at 4:51 AM on October 14

I work for an attorney who does wills for people.

Usually he will put into his wills some sort of common disaster clause for spouses, that says, basically, "if my spouse and I die in some sort of accident where it is impossible to tell who died first, assume that I died first and distribute my stuff accordingly."

Each spouse's will says that, so that the person's wishes as to how their stuff is distributed is followed as closely as possible.

(I think. I'm not an attorney, I just type up what he tells me to type up.)
posted by Lucinda at 6:38 AM on October 14

The waterfront is pretty well covered here, but on a policy note, the reason the act assumes that each person died after the other lets us avoid transferring someone's entire estate to their spouse, only to then distribute it to the spouse's heirs. If each person's estate is distributed as if the other is dead already, then we cut down on transaction costs and general messiness.
posted by craven_morhead at 8:09 AM on October 14

muckybob is almost right in relation to England & Wales.

The clause he quotes is common in a will, but where there's a accident and you can't tell who died first, then the commorientes rule would apply. This rule broadly states that where two or more people have died in a simultaneous event (e.g. a plane crash), the law presumes that they died in the order of seniority, i.e. the younger person is deemed to have survived the elder. This can have implications for Inheritance Tax purposes.

Scotland and Northern Ireland have their own legal systems, so this might not apply exactly for the whole of the UK, although it's unlikely to be significantly different in those countries.
posted by essexjan at 10:12 AM on October 14