18.20 Simultaneous Death Act

18.20.1

In General

The Uniform Simultaneous Death Act (the "USDA") sets forth transactional rules that apply to situations where two or more persons die in a common accident or disaster, and one or more of the deceased persons was the other's heir in intestacy or devisee in mutual wills, or the persons owned property together with rights of survivorship. The USDA applies unless the decedents have otherwise made specific provisions in applicable documents for the possibility of simultaneous deaths.

The classic example involves a husband and wife who are both killed in the same automobile accident. The common law generally causes the property of the person who died first to pass to (into the estate of) the person who died second. The determination of the person who is deemed to have predeceased the other affects the ultimate distribution of the property.

The USDA seeks to avoid the necessity of passing the property through possibly two estates and two probates (with their accompanying expenses and delays) before reaching the ultimate surviving recipient(s).

18.20.2

1940 Version of the USDA

The USDA was originally promulgated in 1940 by the Uniform Law Commissioners, and amended in 1953. The original version was adopted in 49 states, with variations or modifications in some jurisdictions. Although a newer version of the USDA was drafted in the early 1990's (see section below), the original version remains in effect in many states.

Pursuant to the original USDA, if there is no sufficient evidence that the persons have died otherwise than simultaneously, and a beneficiary's right to property is conditional upon his or her surviving another person, the beneficiary is deemed not to have survived (i.e., the property of each person passes as if the other person had already died). USDA § 2 (1940, 1953).

The original USDA states that if there is no sufficient evidence that two or more beneficiaries have died otherwise than simultaneously, and property has been disposed of such that each of such beneficiaries would have been entitled to the property if he or she had survived the other, the property shall be divided into equal portions (based upon the number of beneficiaries) and distributed to those who would have taken if each of such beneficiaries had survived. USDA § 2 (1940, 1953). In the husband and wife example, one-half of such property passes to each person's heirs, devisees and/or beneficiaries under their will or by intestate succession.

The original USDA also provides that if there is no sufficient evidence that two joint tenants or tenants by the entireties have died otherwise than simultaneously, the property shall be distributed one-half as if one had survived and one-half as if the other had survived. USDA § 3 (1940, 1953). A similar optional provision for community property appears in USDA § 4 (1940, 1953).

18.20.3

1993 Version of the USDA

The 1991 version of the USDA appears in revisions of Article II of the Uniform Probate Code (the "UPC") (1990) and the Uniform Act on Intestacy, Wills, and Donative Transfers (1991). The newer version of the USDA is incorporated into both of these Acts. Therefore, the USDA may be found in a state's Uniform Probate Code or as a separate, free-standing Uniform Simultaneous Death Act. Some technical amendments were made to the USDA in 1993, but those involved no substantive changes. By 2001, the basic form of the 1993 version of the USDA had been adopted by ten (10) states.

Pursuant to the newer version of the USDA (1993), if the right to property depends upon a person's survivorship of the death of another person, a person who is not established by clear and convincing evidence to have survived the other person by 120 hours is deemed to have predeceased the other. The effect is to prevent any property from passing between them at death. For example, if a husband and wife are killed together in an automobile accident, each predeceases the other by law. Their other heirs, devisees and/or beneficiaries will take their property, pursuant to the alternative provisions in their respective wills or the rules of intestate succession. USDA (1993) § 2; UPC § 2-104 & 2-702.

The newer USDA also provides rules for passage of property held with right of survivorship (e.g., joint tenants or tenants by the entireties). If it is not established by clear and convincing evidence that one of the two co-owners survived the other by 120 hours, one-half of the property passes as if one person had survived by 120 hours, and one-half passes as if the other person had survived by 120 hours. The effect is to split the jointly-owned property and transfer each half to the alternative heirs, devisees and/or beneficiaries of each deceased person. USDA (1993) § 4, UPC § 2-702.

18.20.4

Underwriting

The USDA and applicable sections of the UPC can be used as background information regarding the likely owner of a particular property. However, the statutes (even accompanied by affidavits and proofs of deaths) are not determinative for the purpose of insuring title. The ultimate determination of the ownership of property must be made by a court of competent jurisdiction.