Order of death

Minding the Gap

The order in which a testator and his or her spouse, civil partner or other beneficiary dies can have a powerful impact on inheritance (who gets what), and inheritance tax (whose estate forks out to the tax man).

Do it right - for example, by naming alternate beneficiaries or using trusts - and your wealth goes pretty much as you intended.

Do it wrong - a poorly drafted will, a lost will or no will at all - and your assets can go to total strangers, even enemies.

"FOURTH In the event that my wife and I die under such circumstances that there is not sufficient evidence to determine which of us has predeceased the other, I hereby declare it to be my will that it shall be deemed that I shall have predeceased her and that this, my Will, and any and all of its provisions shall be construed based upon that assumption."

Will of John Lennon

Suppose a husband and wife, 70-year-old Harry and 65-year-old Wilma, are killed in an accident. His will leaves everything to her, and her will leaves everything to him.

But Harry and Wilma each have children from previous marriages.

And each of their wills contains a clause to the effect that if their spouse does not survive them by 28 days, the legacy goes instead to their respective children.

Whether Wilma inherits from Harry or Harry from Wilma will therefore be important for their respective children and other heirs.

A related order-of-death problem is not limited to couples and involves a beneficiary dying shortly after a testator. Someone may leave a generous gift to a grandchild, niece or nephew only for the recipient to die a week or so after the testator. If the recipient has no will, the gift goes into the recipient's intestacy. If the recipient has a will, the gift goes to their beneficiaries. Either way, the original testator's gift is out of that person's control.

In many accidents couples die more or less simultaneously, or the order of death can not be determined. However, one of the accident victims may survive the other, if only for a few hours.

In the fatal car accident involving Princess Diana in Paris on 30 August 1997, driver Henri Paul died immediately at around 12.30a.m. Princess Diana's boyfriend Dodi Fayed was declared dead at 1.30a.m., and the Princess herself died at 4a.m. The fourth occupant, her bodyguard, sustained serious injuries but survived.

When the order of death cannot be established, the older person is presumed to have died first.

Who died when? Alternate Beneficiaries

A "survival clause" is a phrase to the effect that someone is to receive a legacy provided they survive the testator for a specified period of time - usually 28 or 30 days - and if the recipient does not survive for that period of time, the gift goes to someone else.

Survival clauses can be tax efficient by distributing assets rather than concentrating them in a single estate.

"...And to hold the same UPON TRUST for such of them my children PRINCE WILLIAM and PRINCE HENRY as are living three months after my death and attain the age of twenty five years if more than one in equal shares PROVIDED THAT if either child of mine dies before me or within three months after my death and issue of that child are living three months after my death and attain the age of twenty one years such issue shall take by substitution if more than one in equal shares per stirpes the share that the deceased child of mine would have taken had he been living three months after my death but so that no issue shall take whose parent is then living and so capable of taking."

The will of Princess Diana

'Simultaneous death'

The significance of the order of death is illustrated by this tragic and intriguing American case from the 1980s.

Newlyweds Stanley and Theresa Janus returned from honeymoon only to, sadly, gather at the Chicago, Illinois home of Stanley's brother, Adam, who had died suddenly and inexplicably.

Stanley and Theresa were understandably stressed, and each took some Tylenol capsules from a bottle they found in Adam's medicine cabinet. Tylenol was a popular over-the-counter brand of pain-relief medicine.

Soon, Stanley and Theresa also became gravely ill, but no one knew at the time that the culprit was tampered Tylenol bottles. Someone in the Chicago area had laced the capsules in numerous bottles with cyanide and returned them to the shelves.

Stanley died quickly; Theresa lingered, kept alive on a respirator. She died two days later.

Theresa clearly died after Stanley, but could these deaths be considered simultaneous?

If they died simultaneously, his life insurance proceeds would go to his mother, not to Theresa (or her estate).

If she died after him, the proceeds would go to her and form part of her estate on her death. The trial and appellate courts each decided that she survived him. Her father, as her administrator, received the proceeds.

Police quickly determined the source of the poison capsules, and the manufacturer issued a massive, costly nationwide recall. But the poisoner was never caught.

Janus v. Tarasewicz, 135 Ill.App.3d 936, 482 N.E.2d 418, 90 Ill.Dec. 599 (Ill.App. 1 Dist. 1985)

"If any person including my husband who would be a beneficiary under any provision of this Will if he or she survives either me or some other beneficiary dies in such circumstances that it is difficult to determine whether or not he or she survived me or such other beneficiary, as the case may be, I direct that for all purposes of this Will such person shall be deemed to have predeceased me or such other beneficiary, as the case may be."

The 1996 will of Linda McCartney

" . . . "

The funeral is over. The ashes, in matching urns, are on the mantelpiece. There is no way to know whose last will or testament is in force, so they have decided to close the house as always, and leave it for the winter. Next summer, when the flood tides of memories and mourning currently swamping them have receded, they will be better able to cope.

Beth Gutcheon, Leeway Cottage (2006)

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Order of death

Minding the Gap

Who died when? Alternate Beneficiaries

'Simultaneous death'

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