Simultaneous Death of a Couple

The simultaneous death of a couple or other persons who stand to inherit from each other can cause problems. The California Probate Code has relevant rules for various situations sprinkled throughout that are not always easy to understand. The following table provides an overview, and explanatory examples follow. Note that the earlier code sections speak of survival and the later code sections of death (deemed to have survived, deemed to have predeceased). In the end it makes no difference, but it helps confuse us further.

Let’s consider a hypothetical scenario involving a married couple, John and Jane.

John and Jane die in a terrible accident

John and Jane are residents of California, a community property state. They have accumulated a significant amount of community property, including a house, a car, and a joint bank account. They also have some quasi-community property, such as a vacation home in Montana, which they purchased with the proceeds from selling a property they owned in California.

Unfortunately, John and Jane are involved in a tragic accident and both die at the scene. The circumstances of the accident make it impossible to determine who died first. This is where the so-called simultaneous death statutes concerning the distribution of assets following simultaneous death come into play.

Simultaneous Death Statutes

There are actually two sections in the California Probate Code that are at variance with each other and have different effects. One section applies to the intestate case (neither spouse has a will, or if a will is present, it is the statutory fill-in-the-blanks will), namely Probate Code Section 6403, aka the ‘120-hour Rule’.
The other, Probate Code Section 220, “does not apply in any case where … Section 6403 applies”.

To put it simply, if you do have a will, the simultaneous death provisions of Probate Code Section 220 is relevant, which looks for the absence of convincing evidence that one spouse survived the other by any amount of time:
“Except as otherwise provided in this chapter, if the title to property or the devolution of property depends upon priority of death and it cannot be established by clear and convincing evidence that one of the persons survived the other, the property of each person shall be administered or distributed, or otherwise dealt with, as if that person had survived the other.”
The will can modify that requirement, and often 30 days survival time is stipulated, otherwise the death is ‘simultaneous’.

If you do not have a will or you have the California statutory will, Probate Code Section 6403 is in force, and requires by law a survival time of more than 120 hours, otherwise:
“A person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for the purpose of intestate succession, and the heirs are determined accordingly. If it cannot be established by clear and convincing evidence that a person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person failed to survive for the required period.”

If you think this is confusing, you are not alone and law professors advocate for an amendment of Probate Code 220 so that it also adopts the 120-hour rule (law review article).

Property Distribution upon simultaneous death

Let’s break this down:

(a) One-half of the community property and one-half of the quasi-community property will be treated as if John had survived Jane. This means that half of their house, car, bank account, and the vacation home in Montana will be administered or distributed according to John’s will or, if he didn’t have a will, according to the laws of intestate succession as if he had survived Jane.

(b) The other half of the community property and the other half of the quasi-community property will be treated as if Jane had survived John. This means that the remaining half of their property will be administered or distributed according to Jane’s will or, if she didn’t have a will, according to the laws of intestate succession as if she had survived John.

This law ensures that the community and quasi-community property of spouses who die simultaneously is divided equally and administered or distributed as if each spouse had survived the other.

This may not be what you want

You can override these statutory provisions in your will or trust. Overriding the simultaneous death statute can provide several benefits:

1. Flexibility: By specifying in your trust what should happen in the event of simultaneous death, you can ensure that your assets are distributed according to your specific wishes, rather than the default rules set by the state.
2. Estate Tax Planning: For couples with large estates, overriding the simultaneous death statute can be an important part of estate tax planning. For example, by specifying that the wealthier spouse is considered to have died first, the couple can take full advantage of the estate tax exemption for the first spouse to die.
3. Avoiding Unintended Consequences: The simultaneous death statute can sometimes lead to unintended consequences. For example, if a couple dies simultaneously and they have no children, their assets might be split between their respective families, which might not be what they would have wanted. By specifying in a trust how assets should be distributed in the event of simultaneous death, you can avoid such outcomes.
4. Clarity and Certainty: By addressing the possibility of simultaneous death in your trust, you can provide clarity and certainty for your heirs and the executor of your estate. This can help to prevent disputes and confusion after your death.