Simultaneous Death Provisions: The Law in the “DMV”

In many estate plans, it is quite common for a husband to leave everything to his wife and kids. And, vice versa, a wife routinely decides to leave everything to her husband and kids. But what happens if both the husband and wife die simultaneously? Under the common law, if there was any evidence that one of the deceased individuals survived the other, even by a few seconds, then the estates would be distributed in that order. This led to many bitter inheritance battles in court. So, to address this problem, the Uniform Simultaneous Death Act was passed and applies to the “DMV” (i.e. District of Columbia, Maryland, and Virginia).

The Act establishes that if two people die within 120 hours of one another, and there’s no will that expressly addresses this situation, each person is considered to have predeceased the other. This means an individual’s estate will pass down to their designated beneficiaries and heirs verses going to their spouses’ in the event they die within 5 days of each other. But keep in mind, the Act has a clause that if the assets of an estate will be going to the state (i.e., doesn’t pass on to a living heir), the 120-hour rule will not be applied.

The Act, along with addressing the simultaneous death scenario, established that if a person had a life insurance policy and a simultaneous death scenario occurs, the policy proceeds would go to the listed contingent beneficiary.

In order to be fully prepared for a simultaneous death scenario, some estate planning attorneys include, what my clients recognize as the “Bad Potato Salad at the Family Picnic” story, a clause which explicitly sets forth instructions on how to deal with a simultaneous death scenario.

I try to be as thorough as possible when creating an estate plan for each of my clients, so I recommend we talk through such a scenario and specifically lay out what should be done in this tragic circumstance. You don’t want to rely on the Uniform Simultaneous Death Act, or another general statutory provision, in your estate plan. I recommend an estate plan that is detailed, specific and addresses a myriad of circumstances so your assets can be fully protected.