You died First – No, you died First.

Most wills have provisions in them that say that property goes to a certain person if they survive them. If that person doesn’t survive them, then the property goes to a different person.

But, what happens if the person writing the will and their intended beneficiary (e.g., husband and wife) die together, in a common accident, with no real ability to determine who died first?

To resolve this problem, New Hampshire has adopted the Uniform Simultaneous Death Act (RSA 563). The act begins with a definition of a “governing instrument.”

A governing instrument refers to a deed, will, trust, insurance or annuity policy (and many other like documents). The law then says, that with specific exceptions, if title to property and other rights depend upon an individual’s survivorship of the death of another individual, an individual who is not established by clear and convincing evidence to have survived the other individual by 120 hours (5 days) is deemed to have predeceased the other individual.

There is a special rule dealing with property owned as joint tenants with rights of survivorship. If it cannot be established by clear and convincing evidence that one party survived the other by 120 hours (5 days), then the jointly held property passes ½ as if one co-owner had survived and ½ as if the other co-owner had survived.

That may not be a desirable result. Planning could have avoided it.

These rules (and other like it) do not apply if the governing instrument deals explicitly with simultaneous death (and many wills, trusts, etc. do exactly that). It is prudent to have language in governing instruments dealing with simultaneous deaths and common disasters as a person’s actual will can be thwarted by legislative fiat. A governing instrument, for example, can indicate that an individual is not required to survive an event, including the death of another person, by a specific period or survive a specific event by a specified period.

The Simultaneous Death Act contains a number of other rules designed to do justice in a common disaster. For example, there are protections for purchasers of property who in good faith relied on someone’s apparent entitlement under a governing instrument.

These rules are very technical and beyond the purpose of this blog entry. When people die together or as a result of a common disaster, issues can arise. The Uniform Simultaneous Death Act is an attempt to restore order where chaos had once reigned.

R. Peter Decato

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