Simultaneous Death: How are Assets Distributed When Family Members Die at the Same Time?

There is a difficult question of determining, for the purposes of distribution of assets, who will be entitled to property when family members die:

• At the same time; or
• In circumstances where it is impossible to tell who died first.

This situation is known as simultaneous death. For example, a family could be travelling together in a car or plane when they get into a horrific accident and pass away. How are the assets of each family member distributed then?

Legal Presumption: Whoever is Older Died First

If there is evidence to prove who had actually died first, then the assets of the person who died first will be distributed first, before the assets of the person who died later.

However, if circumstances are such that it is impossible to determine who died first, then the law states that the younger person will be deemed to have survived the elder.

In other words, whoever who is older will be deemed to have died first.

Here are 4 scenarios to illustrate how this legal presumption will apply, depending on whether the parties had made a will. Assume that:

• The parties who died are husband and wife (let’s call them “Husband” and “Wife” respectively)
• Husband is older than Wife
• Both parties died in the same car accident
• We can’t tell who died first

Scenario 1: Husband and Wife Both Die Without a Will

As Wife is younger than Husband, Husband will be deemed to have died first. Hence, we distribute his assets first.

In this scenario, Husband has not made a will. Therefore, his assets will be distributed according to the rules in the Intestate Succession Act. Under these rules, Wife will get a share of Husband’s assets.

However, as Wife has also passed away, her share of Husband’s assets will become part of her estate (i.e. the assets she has at the point of her death). Note that Wife’s estate has become larger as it now includes a share of Husband’s assets. This would not have happened if Wife is deemed to have died first instead.

And as she also died without a will, her total assets (including her share of Husband’s assets) will also be distributed according to the rules in the Intestate Succession Act.

Scenario 2: Husband Made a Will Containing a Survivorship Clause, But Not Wife

If you have made a will, you will be able to choose who will be entitled to your assets after your death (and in what portion).

However, your will’s “default position” will be that any person still alive (or deemed to be so) after your death will be considered as having survived you. This is even if that person then dies a short while later such that if you had known this would happen, you would have wanted your assets to go to someone else who can enjoy them more fully.

In this situation, you may include a survivorship clause in your will. This clause will state how long a person must have survived after your death to be considered as having “survived” you. It will be beneficial to have such a clause where you would prefer another person to receive your assets in the event that the person who is your “first choice” dies shortly after you.

To demonstrate how such a survivorship clause could work, let’s assume that Husband has made a will containing a survivorship clause stating (for example):

“All my assets will vest in my spouse if he/she survives me by at least 28 days. If my spouse and I shall die under such circumstances that the order of our deaths cannot be readily ascertained, my spouse shall be deemed to have predeceased me. If my spouse does not survive me by at least 28 days, all my assets are to be distributed to my children.”

Now, if Husband and Wife are both found dead at the accident scene and it is impossible to tell who died first, this survivorship clause will override the legal presumption that the older person died first. Wife will therefore be regarded as having died first.

Since Wife is regarded to have died first, we distribute her assets first. Her assets will be distributed according to the rules in the Intestate Succession Act since she did not make a will. Under these rules, a portion of Wife’s assets will pass to Husband.

However, as Husband has also passed away, his share of Wife’s assets will become part of his estate.

After we have finished distributing Wife’s assets, we move on to distribute Husband’s assets according to his will’s instructions. Note that Husband’s estate has become larger as it now includes a share of Wife’s assets. This would not have happened if Husband is deemed to have died first instead.

Since Wife is deemed to have died first (and did not survive Husband by at least 28 days), then following the survivorship clause in Husband’s will, all of Husband’s assets will be distributed to the couple’s children.

Scenario 3: Wife Made a Will Containing a Survivorship Clause, But Not Husband

Assume that Wife’s will contained the same survivorship clause from above, where in the event of simultaneous death Husband is to be deemed to have died first.

In this case, applying either the legal presumption (that whoever is older died first) or the survivorship clause will lead to the same result. In other words, Husband will be deemed to have died before Wife and so we distribute his assets first.

As Husband has not made a will, his assets will be distributed according to the rules in the Intestate Succession Act. Under the rules, Wife will therefore get a share of his assets.

However, as Wife has also passed away, her share of Husband’s assets will become part of her estate.

After we have finished distributing Husband’s assets, we move on to distribute Wife’s assets according to her will’s instructions. Note that Wife’s estate has become larger as it now includes a share of Husband’s assets.

Since Husband is deemed to have died first (and did not survive Wife by at least 28 days), then following the survivorship clause in Wife’s will, all of Wife’s assets will be distributed to the couple’s children.

Scenario 4: Husband and Wife Both Made Wills Containing a Survivorship Clause

Assume that both spouses’ wills contained the same survivorship clause from above, where each clause states that the other spouse is to be deemed to have died before them in the event of simultaneous death.

Who should then be regarded as having died first? In this case, who died first (and accordingly, whose assets we distribute first) might not matter so much.

Both spouses’ wills deem the other spouse as having died first. Accordingly, any assets they have left to each other will not successfully pass to them (because they did not survive each other by at least 28 days), but will pass to their children instead following the wills’ survivorship clauses.

The distribution of the spouses’ assets according to their wills can therefore proceed in either order.

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As unforeseeable and as unlikely simultaneous death may sound, the risk of such a tragedy happening should not be ignored.

It may be morbid to plan how your assets should be distributed after your death. However, a well-drafted will (especially if it contains a survivorship clause) will be extremely helpful in preventing conflict among your surviving family members when you pass away.

If you would like to make a will but are unsure of how to do so, feel free to get in touch with one of our wills lawyers.