Simultaneous death

Two people are in the same car. Or the same house, or the same aircraft. They both die. Who died first?

It sounds like a morbid parlour question and it is not. Enormous amounts of property turn on it, because a great deal of estate planning is written in the language of survivorship. To my wife if she survives me, otherwise to my children. *To the survivor of us. Payable on death to my husband.* Every one of those sentences requires an answer to the question, and a common accident is precisely the situation in which nobody can give one.

American law has two settled answers to this and Florida chose the older one.

Answer one, the modern rule: require a real margin. The Uniform Simultaneous Death Act was revised in 1991, in line with the Uniform Probate Code, so that a person must survive by 120 hours — five days — to be treated as having survived at all. Anything less is treated as simultaneous. It is clean, it is administrable, and it ends the argument.

Answer two, the 1940 rule: ask whether there is evidence. If there is insufficient evidence that the two people died otherwise than simultaneously, the property is divided as if each had survived the other. If there is evidence — any evidence — the statute does not apply at all, and the ordinary rules run on whatever order the evidence establishes.

Florida still uses answer two.

What §732.601 actually provides

The whole section is governed by six words at the top: “Unless a contrary intention appears in the governing instrument.” Everything below them is a default that a will, trust, deed or beneficiary designation can displace. That preamble is the most important part of the statute, and it is the reason the fix in this case is a drafting fix.

(1) The general rule. Where title to property or its devolution depends on priority of death and there is insufficient evidence that the persons died otherwise than simultaneously, the property of each person is disposed of as if that person survived. Not one estate flowing into the other — two estates, each treated as the survivor of the other, each passing to its own beneficiaries.

(2) Successive beneficiaries. Where two or more beneficiaries are designated to take successively by reason of survivorship under someone else's disposition, and there is insufficient evidence which died first, the property is divided into as many equal parts as there are successive beneficiaries, and each part goes to whoever would have taken had that beneficiary survived.

(3) Joint tenants and tenants by the entirety. Insufficient evidence means the property is distributed one-half as if one had survived and one-half as if the other had survived. With more than two joint tenants, in the proportion one bears to the number of joint tenants. This is the subsection that governs the jointly titled house and the joint bank account, which is to say most married couples' property.

(4) Life and accident insurance. Where the insured and the beneficiary both die and there is insufficient evidence who went first, the proceeds are distributed as if the insured had survived the beneficiary — so the policy pays into the contingent beneficiary or the insured's estate, not through the beneficiary's estate.

Why “insufficient evidence” is a harder test than it sounds

The 1991 revision to the uniform act existed because the 1940 standard produced litigation. Under the old rule, the question is not who survived — it is whether there is enough evidence to say. And modern evidence is very good at saying.

Emergency medical records with timestamps. Cardiac monitor traces. A hospital admission at 4:12 and a pronouncement at 4:31. A witness who saw one person move. Autopsy findings on relative carbon monoxide levels or the extent of a haemorrhage. Any one of these can be enough for a court to find that one person survived the other by minutes — and the moment a court so finds, §732.601 switches off entirely and the estate flows through the survivor.

So the statute that people imagine as a safety net is really a tie-breaker that only applies when the record is genuinely blank. Improve the medicine and you shrink the statute.

A related point, and it is where families are most often surprised: the presumptions in §732.601 do not distribute anything by themselves. They tell you whose beneficiaries take. If both people's documents leave everything to each other and neither names a contingent beneficiary, subsection (1) produces two estates that each pass by intestacy under §732.102 and §732.103 — to two different sets of relatives.

• No evidence at all — §732.601 applies. Two estates, each treated as surviving the other.
• Any credible evidence of order — the statute does not apply. The survivor inherits, however briefly they survived.
• A survivorship clause in the document — neither of the above. The clause governs, because the statute yields to a contrary intention.

Five minutes, two probates, and the wrong family

Work through what actually happens when a court finds that one spouse survived the other by a few minutes.

Everything passes twice. The first decedent's estate is administered and distributed to the survivor — who is dead. It then falls into the survivor's estate and is administered again. Two petitions, two personal representatives, two notices to creditors, two sets of fees under §733.617 and §733.106, and two rounds of delay, on the same assets.

And it lands with the survivor's family. This is the part that ends relationships. In a second marriage, if the husband is found to have survived his wife by twelve minutes, her property runs into his estate and out again to his children. Her children receive nothing, and nobody involved intended that outcome — it was decided by an ambulance timestamp.

The same logic reaches jointly held property and beneficiary designations. Subsection (3) splits a joint tenancy half and half only where the evidence is insufficient. Where it is not, the whole of a jointly titled house passes by survivorship to whoever is found to have lived the longer, and then out through their estate.

A recent illustration, from another state. In February 2025 Gene Hackman and Betsy Arakawa died in the same house about a week apart. Her will required him to survive her by 90 days. He survived by roughly seven, so the clause was not met and her estate went where her document said it should go instead. That case turned on a clause, not on a simultaneous-death statute — which is exactly the point. The clause did the work the Florida statute would not have done.

One sentence, and a number under six months

The remedy is a survivorship clause, and it costs nothing to include: no person shall be deemed to have survived me unless that person survives me by [30] [60] [90] days.

Because §732.601 opens with “unless a contrary intention appears in the governing instrument,” such a clause is not fighting the statute. It replaces it. And it converts an evidentiary problem — who died first, litigated on hospital records — into an arithmetic one that anyone can answer from two death certificates.

Pick the number carefully if a spouse is involved. Federal estate tax law has an opinion. Under IRC §2056(b)(3) and Treas. Reg. §20.2056(b)-3, an interest passing to a surviving spouse that is conditioned on survival is not treated as a disqualifying terminable interest only where the condition is limited to survival for six months or less, or death in a common disaster, and the condition does not in fact occur. A survivorship requirement that could run beyond six months puts the unlimited marital deduction at risk. Which is why practitioners land on 30, 60 or 90 days, and essentially never on a year.

Put the same clause in every document, not just the will: the revocable trust, the pour-over will, the life insurance and retirement beneficiary designations, and any transfer-on-death or pay-on-death registration. A 90-day clause in the will and a bare beneficiary designation on a $2 million policy means the policy does not care what the will says.