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Problems Created by Simultaneous Deaths and Probate Cases

       Probate can be a lengthy, expensive, and a public process that most people prefer to avoid. When you are forced to duplicate that process for related parties who died simultaneously, it can be needlessly expensive, time-consuming, and complicated. When the estates of multiple individuals must go through the probate process following simultaneous or nearly simultaneous deaths, there may be additional costs, delays, and red tape. 

Consider the following: that the titles of all the couple’s property were in only the wife’s name. If both spouses’ wills named the other spouse as the sole beneficiary of their respective property and their children as contingent beneficiaries, absent a survivorship requirement in the wills, the law would normally require separate probate cases to administer the spouses’ estates. First, the wife’s will would direct the transfer of all the property to the husband’s estate because he survived her by a few hours; then the husband’s will would direct the transfer of all the property to the children. 

Also, probate is the court process that appoints an executor, also known as a “personal representative,” and grants that person the right to collect a deceased person’s accounts and property, sell the property, if necessary, pay off the decedent’s debts, and eventually distribute any remaining property to the decedent’s heirs. 

Available Solutions

In most states have default laws to address these common issues, including the Uniform Simultaneous Death Act and various versions of the Uniform Probate Code. Generally speaking, these laws establish a rule that when two individuals die within 120 hours of each other, each individual will be treated as having predeceased the other. Thus, if a husband and wife die at the same time or within 120 hours of each other, and the husband’s will distributes 100 percent of his property to his wife at his death, the wife is treated as having predeceased her husband, allowing his estate to pass to the individuals or organizations named in his will as contingent or remainder beneficiaries instead of to the estate of his deceased wife. This statutory requirement helps eliminate the need for separate probate of the wife’s estate only for it to receive the husband’s property and then pass it to the children through her estate, though multiple probates might still be needed, however, if the wife had separate property that did not pass by right of survivorship or beneficiary designation.

Most, if not all, state simultaneous-death laws make exceptions to the default rule if the deceased individual’s will or trust contains a simultaneous-death provision. A will or trust can be drafted to lengthen the survivorship requirement to as much time as you consider appropriate, such as 30 days, 90 days, 120 days, etc. You can also specify which spouse should be considered to have predeceased the other in a simultaneous-death situation. In the estate tax example described above, it could be useful to include a provision in both spouses’ estate planning documents stating that the wife should be presumed to have predeceased the husband in the event of simultaneous death to ensure that the estates of both spouses are administered to result in the greatest possible tax savings.

Reviewing Your Estate Plan



If you are unsure what would happen to your accounts and property if you and your spouse were to die simultaneously or within a short time of one another, start by carefully reading your will or trust documents. You may be surprised to learn that one spouse will be presumed to have predeceased the other. If such a presumption is unwarranted, speak with your estate planning attorney to determine why that provision was included and whether the reason is tax related or something else. If there is no survivorship or simultaneous-death provision in your estate planning documents, consider what your state law requires in such a circumstance. If it is still not clear how simultaneous deaths might impact your estate planning, get further advise to gain a better understanding of what would happen in a simultaneous-death situation and whether you and your spouse approve of the result.