Chapter 12.5 Uniform Simultaneous Death Act

• Jurisdiction: Washington

§ 12.5 UNIFORM SIMULTANEOUS DEATH ACT

RCW 11.05A.020 provides that if the devolution of property depends upon the order of death and there is insufficient evidence to determine the order of death, then each individual is presumed to have survived the other. In the classic case of a couple dying in a common accident, the husband's estate passes as though he survived his wife, and the wife's estate passes as though she survived her husband. Rather than have either estate pass unnecessarily through the other, the estates pass to the contingent heirs.

Many wills expressly incorporate the concept of RCW 11.05A.020 by providing that a spouse must survive for a certain period of time to take under the will. I.R.C. § 2056 provides that the estate tax marital deduction is available despite such a provision, as long as the waiting period is no greater than six months. However, it is sometimes desirable from an estate tax point of view to be able to take advantage of the tax on prior transfers credit (TPT credit) under I.R.C. § 2013, which

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can occur only if the presumption of RCW 11.05A.010 is reversed; that is, in a simultaneous death, each is assumed to have predeceased the other so that each spouse's estate passes through the other spouse's estate. The details of the use of the TPT credit are beyond the scope of this chapter. For further discussion, see §8.5(2)(b) in Chapter 8 (Tax Planning) of this deskbook.

RCW 11.05A.020 covers the simultaneous death of successive or alternate beneficiaries. In such a case, the property is divided into as many equal portions as there are successive or alternate beneficiaries, and each portion is distributed as if the beneficiary had survived the other beneficiary or beneficiaries. Thus, if a bequest was "to A and B, or the survivor of them," or if it was "to A if he survived, otherwise to B," and in either event A and B died simultaneously prior to the decedent, one-half of the bequest would pass as though A had survived B, and one-half would pass as though B had survived A. If the simultaneous death occurred before the testator's death, RCW 11.05A.020 would have to be applied in light of the language in the testator's will, and in the absence of such language, in light of the antilapse statute. RCW 11.12.110.

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