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Gierach and Gierach, P.A.

Simultaneous Death Law

Tragically, reports of several members of the same family being killed in an accident are not uncommon. One such example is the recent report of five family members who were killed by a rockslide while they were hiking in Colorado. In cases such as this, it is often impossible to know which family member died first.

Not knowing which family member died first can create problems with an inheritance. For example, imagine a case of a childless couple who died in an accident. In their wills, each spouse left their entire estate to the other spouse. If the other spouse was no longer alive, then the husband's estate was to pass to his father, and the wife's estate to a charity. If the husband died after his wife, then he would inherit his wife's estate and then in turn, the entire estate would pass to his father. Conversely, if the husband died first, the entire estate would pass to the charity via the wife. But what happens if they died in the same instant or there is no way of knowing which of them died first? Florida's probate code makes provision for these circumstances.

Florida’s Simultaneous Death Law

Under Florida' simultaneous death law, where there is insufficient evidence as to which person died first, the law presumes that each person survived the other. So in the above example, both the husband and the wife are presumed to have survived the other. The husband's father would therefore inherit the husband's estate and the charity would inherit the wife's estate.

The same would apply if each of the couple had a life insurance policy naming the other as the primary beneficiary of the policy, and naming the father and charity respectively as the contingent beneficiary in case the other spouse was no longer alive. The husband's father would receive the proceeds of the husband's policy and the charity would receive the proceeds of the wife's policy.

What if the couple owned property as joint tenants or tenants by the entirety? Normally, upon the death of one co-owner, the other co-owner automatically receives the decedent's interest in the property. In this case, however, half the property would be distributed as if the husband had survived and the other half as if the wife had survived. So, in accordance with each spouse's will, the husband's father would receive half the property and the charity would get the other half.

Note, however, that these statutory rules only apply if there is no contrary provision in the couple’s wills or life insurance policy documents. This means that your documents can be drafted to provide for a different outcome if you wish. Contact an experienced Orlando wills and probate attorney who can help you ensure that, after you are gone, your assets are distributed in the way you want. 

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