A common question
As will writers, it’s a question we’re often asked by couples: what happens if we both die at the same time?
The answer can be found in legislation governing survivorship. In the Law of Property Act 1925, the “Commorientes Rule” states that if it’s unclear who survived the longest, the elder is deemed to have died first.
Now, the rule on simultaneous deaths is being challenged in the High Court.
The case involves the estate of John and Ann Scarle, an elderly couple who both died of hypothermia in their Essex home in 2016. Both had children from different relationships.
Like many people, they owned their £280,000 home jointly. Joint ownership ensures that when one partner dies, property would automatically pass to the survivor.
If John had died first, the property would have passed to Ann – however briefly – and then to her children. But if Ann had predeceased John, John would have inherited the property for a short time before it passed to his children.
It seems strange that in the modern age of forensic science, it isn’t possible to determine which of the pair passed away first. However, even scientific methods is based only on probabilities.
John Scarle’s daughter believes that it was probable that Ann Scarle died first, based on police evidence. But Ann Scarle’s daughter believes that the order of deaths cannot be determined with certainty.
That’s where the Commorientes Rule comes in. If the order of deaths can’t be determined, the eldest is deemed to have died first. Since John was 79 years old and Ann 69, Ann’s daughter would be the beneficiary.
The judge reserved his ruling, so the fate of the estate is as yet unknown. But with the law saying that simultaneous death can’t occur, one side will end up disappointed.
A trusted solution
If we could roll back the clock and advise Mr and Mrs Scarle before they passed away, we would have suggested a protective property trust (PPT).
The couple could have split the ownership of their home in two, each owning 50%. Instead of passing to the other partner on first death, one half would instead go into a trust for the benefit of that parent’s biological children.
In most scenarios, both partners would not pass away in such a short period of time. The PPT helps in more common situations too, as it grants a lifetime right to reside in the property to the surviving partner.