In today’s modern age, we have the benefit of amazing technology. We can fly half-way around the world in less than a day. We can travel virtually anywhere by “planes, trains and automobiles.” However, this technology also comes with risks especially when persons, such as spouses, are travelling together. So what happens to an estate if two spouses are on the same flight and the airplane goes down killing both instantly?
In order for a person to inherit by way of Will or Trust or by way of intestate statute, that person must survive the deceased person. If they do not, then they do not inherit. This poses a problem when it cannot be determined who died first.
Fortunately, Florida, like most states has a statute that governs what are known as “simultaneous deaths.” If the nature of two person’s deaths is such that it cannot be determined which died first, then Section 732.601 Fla. Stat. 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 first thing to notice about this statute is that the deceased person’s Will or Trust controls if it provides for what happens in the event of simultaneous death. Often, estate planning lawyers will put a provision addressing this issue in a Will or Trust. Sometimes the provision will require that a beneficiary survive the deceased person by a period of time, such as 30 days. Otherwise, the beneficiary is presumed to have predeceased.
If the Will or Trust do not address survival, or if there is no Will or Trust, then Section 732.601 applies. In simplest terms, it can be said that when two people died simultaneously such that the order of death cannot be determined, then Florida law treats them as if each survived the other. If they own individual property, that property goes to the person’s living beneficiaries or heirs and not to the other deceased person’s estate. If the deceased persons own property jointly, one-half goes according to each deceased person’s living beneficiaries or heirs. An example can help.
John and Sally, husband and wife, each have a Will but foolishly they did it themselves without a lawyer so the Wills lack a simultaneous death provision. Their Wills name each other as primary beneficiary and each spouse names his or her siblings as the alternate or successor beneficiaries. John and Sally each own bank accounts in their individual names and they own a house in their joint names. They decide to travel to Brazil for the Olympics and in route, their flight encounters difficulties and crashes, instantly killing all on board. Since their Wills lack a simultaneous death provision, Section 732.601 applies. Under that statute, each spouse’s bank account and one-half of the house would go according to each spouse’s respective Will.
