Simulanteous Death Issues

Survival requirement
To inherit under a will or trust, you must live longer than the decedent. Dead people can't take by will or by trust or by intestacy. If it can't be determined by clear and convincing evidence who survived whom, then it's presumed that one person didn't survive the other.

Ex: T and devisee die in a plane crash. We can't tell who survived who. Therefore the gift to the devisee has predeceased the T and the gift will either lapse or will be distributed under the anti-lapse statute.

Ex: A and B are joint tenants who died in a plane crash. You can't tell who survived whom. Split the joint tenancy. 1/2 to each. Same result if they were spouses or domestic partners with wills and community/quasi-community property.

Ex: if you have a life insurance policy and the insured and the beneficiary both die simultaneously, the beneficiary is deemed not to have survived. See if there is an alternative beneficiary. If not, the benefits are paid to the insured's estate: to the residuary devisee in the will if any, but if none, to the insured heirs. Note: if the policy premiums are paid for w/community property and the insured and beneficiary are spouses then half goes to the husband's estate and half goes to the wife's estate.

In California, under the rules of intestacy, the recipient must show clear and convincing evidence that s/he survived by at least 5 days (120 hrs). If she cannot then she is treated as having pre-deceased the decedent (and she gets nothing).

For purposes of wills, however, the recipient must show clear and convincing evidence that that person survived by just 1 second. We must know what is the exact time of death? Common law determined the time of death by irrevocable succation of circulatory and respiratory function (heart beating and breathing). The modern approach is the brain dead standard. This is a medical determination. Experts will determine when a person is brain dead.

The burden of proof is on person who said they survived, the person who stands to inherit.

Disclaiming an Inheritance
Many wealthy people do this for tax purposes. The IRS lets you “reject” an inheritance so you don’t have to pay tax on it. Requirements: (i) disclaim in writing, (ii) file w/the local probate court, (iii) within a certain amt of time.