In our first post on this topic, we discussed how to determine whether or not an heir or devisee survived the decedent. This post will explain how survival alters the administration and distribution in an estate. Effective January 1, 2014, the Uniform Simultaneous Death Act includes both intestate (without a will) and testate (with a will) estates. It can also now alter non-probate transfers as explained below.
In intestate estates, if the party is determined to have survived the required 120 hours after the decedent, then they will take as an heir under the intestate statute. If they have not, they loose the right to take as well as the right to file a claim for exempt property. Application in a testate estate can be a little more complicated as it can cause the spouse’s estate to loose the ability to claim both exempt property and elective share claims. However, in testate estates, the governing instrument (will, trust, etc.) can override the act such that survival by 120 hours is not required when:
- The governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case;
- The governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event for a specified period; but survival of the event or the specified period must be established by clear and convincing evidence;
- The imposition of a one hundred twenty hour requirement of survival would cause a nonvested property interest or a power of appointment to be invalid under other provisions of the Code. In this situation, survival (although not by 120 hours) must be established by clear and convincing evidence;
- The application of the 120 hour requirement to multiple governing instruments would result in an unintended failure or duplication of a disposition; Similar to above, survival of any period must be established by clear and convincing evidence;
- The application of the 120 hour requirement would deprive an individual or the estate of an individual of an otherwise available tax exemption, deduction, exclusion, or credit, expressly including the marital deduction, resulting in the imposition of a tax upon a donor or a decedent’s estate, other person, or their estate, as the transferor of any property;
- The application of a one hundred twenty hour requirement of survival would result in an escheat.
In addition to the application of the 120 hour rule to testate estates, it now also alters how real property held jointly with rights of survivorship passes. If it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by the 120 hours, one-half of the property passes as if one had survived by at least one hundred twenty hours and one-half as if the other had survived by at least one hundred twenty hours. In other words, the right of survivorship is essentially changed to a joint tenancy where each parties ownership interest passes through their respective estate.
While the Uniform Simultaneous Death Act has new amendments, they aren’t complicated to an experienced probate attorney. If you have any questions about its application, seek out an attorney for a consultation on its application.