Why Have a Simultaneous Death Provision in Your Will or Trust?

Often estate attorneys will include a simultaneous death provision in a Will or Trust. These provisions are intended to address what happens if two persons die such that it cannot be determined who died first. For example, what if a mother has a provision in her Will leaving her estate to her daughter, if her daughter survives her--and then the airplane they are in crashes killing both of them, does the daughter still inherit? 

Florida, like many states, has a "Simultaneous Death" statute. Section 732.601 provides as follows:

"Unless a contrary intention appears in the governing instrument:

(1) When title to property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if that person survived.

(2) When two or more beneficiaries are designated to take successively by reason of survivorship under another person's disposition of property and there is insufficient evidence that the beneficiaries died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal parts as there are successive beneficiaries and the parts shall be distributed to those who would have taken if each designated beneficiary had survived.

(3) When there is insufficient evidence that two joint tenants or tenants by the entirety died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them so died, the property thus distributed shall be in the proportion that one bears to the number of joint tenants.

(4) When the insured and the beneficiary in a policy of life or accident insurance have died and there is insufficient evidence that they died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary."

The key to whether this statute applies is set forth in the first line, i.e. "Unless a contrary intention appears in the governing instrument..." Rather than letting this statutory provision resolve the dilemma created by a simultaneous death, the better practice is to provide in the Will or Trust who is presumed to have survived if two people die simultaneously.

In the example given above with the mother-daughter, if mother's Will provided that it shall be presumed that daughter outlived mother, then mother's estate would go to whoever mother named as an alternate beneficiary to daughter. 

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