July 2010 | Earn one hour of MCLE Credit in General
TIME OF DEATH: DOES IT MATTER?
The simultaneous death statute is inextricably entwined with an heir’s right to inherit
Phillips
Stanley and Teresa Janus returned from their honeymoon in September 1982 to find that Stanley’s brother, Adam, had died suddenly of heart failure at age 27. Assembled to grieve with his family in Adam’s home, Stanley professed to a headache, and Teresa agreed that she could also use some aspirin. In Adam’s bathroom, they found a recently purchased bottle of Tylenol. They both took some.
Minutes later, Stanley collapsed on the kitchen floor. Teresa was still standing when Diane O’Sullivan, a registered nurse and a neighbor of Adam’s, was called to the scene. Stanley’s pulse was weak, and Ms. O’Sullivan began CPR. Within minutes, Teresa began having seizures and collapsed. Paramedic teams arrived, and both Stanley and Teresa were carried out to ambulances. Ms. O’Sullivan, the registered nurse, believed that both Stanley and Teresa were dead before they were taken from the home, but she could not tell who died first. They were 25 and 19 years old, respectively.
The case that followed, Janus v. Tarasewicz (482 N.E.2d 418 (Ill. 1985)), was a small but riveting episode in the much larger saga of deaths from cyanide-laced Tylenol capsules in Chicago in the fall of 1982, one of the most notorious unsolved crimes in the last generation. The seven victims, four women, two men and a 12-year-old girl, died after taking capsules that had been purchased from drugstores and groceries in the Chicago area. Someone had opened the capsules, replaced some of the acetaminophen with cyanide and returned them to the shelves. Stanley, Adam and Teresa were the only related victims. The killer was never identified but the deaths caused widespread panic and led to the implementation of tamper-resistant packaging.(One James W. Lewis was convicted and spent 12 years in jail for trying to extort $1 million from Tylenol’s manufacturer, but was never charged in the killings.)
Before they left on their honeymoon, Stanley named Teresa as the primary beneficiary of a $1 million life insurance policy at work, designating his mother as the contingent beneficiary. If Teresa survived Stanley that evening in Adam’s home, her family was entitled to the proceeds of the policy. If she did not, Stanley’s mother was entitled to them. The case illustrates both the difficulties inherent in establishing an exact moment of death, and the discrepancy in the way state law handles the devolution of assets which variously pass under wills, intestacy, joint tenancy and life insurance. Whether a beneficiary survives, and how long he or she survives, determines how these assets are distributed.
Survivorship in cases such as Janus can sometimes be hardly more than speculation. When the paramedics arrived in Adam’s home on the evening of Sept. 29, 1982, both Stanley and Teresa were unconscious with non-reactive pupils. Neither showed any signs of being able to breathe on their own, both had some level of blood pressure, but because Stanley never developed that pressure spontaneously nor recovered pulse or respiration, he was pronounced dead at the hospital at 8:15 p.m. With Teresa, however, a nurse made an entry in the medical records that she had detected a minimal reaction to light in her right pupil. Teresa was therefore kept in the hospital for further tests, though she never recovered additional signs of life. Death certificates issued more than three weeks later listed Stanley’s date of death as Sept. 29, 1982, and Teresa’s date of death as Oct. 1, 1982. Concluding that Teresa had survived Stanley, the insurance company paid the proceeds of Stanley’s life insurance to the administrator of Teresa’s estate. Litigation followed from Stanley’s mother, contending that they had died simultaneously, and because Teresa had not survived Stanley, she, as contingent beneficiary, was entitled to the insurance proceeds.
Determination of death is defined under state law, and all states have now enacted in some form the Uniform Determination of Death Act, which California adopted as early as 1954. In California, an individual is dead when he or she has sustained either (1) irreversible cessation of circulation and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem (Health and Safety Code §7180).
But determining the fact of death is only the first step. When two or more persons die at or near the same time, the right to inherit depends not just on the establishment of death, but on the order of death. Thus, parties will find it necessary to litigate the order of deaths, as the resulting consequences of survivorship impact inheritance.
When it is impossible to determine the order of death of two individuals, there is a strong presumption that the persons died simultaneously. This presumption, codified by adoption of the Uniform Simultaneous Death Act, is an attempt “… to supplant the former arbitrary and complicated presumptions of survivorship with effective, workable and equitable rules applicable to the ever-increasing number of cases where two or more persons have died under circumstances that there is no sufficient evidence to indicate that they have died otherwise then simultaneously.” (Azvedo v. Benevolent Soc. of Calif., 125 Cal.App.2d 894 (1954))
In that circumstance, where it cannot be proven that one individual survived the other, the assets of each decedent are administered and distributed as if each decedent survived the other. California statute provides:
“ … [I]f the title to property or the devolution of property depends on priority of death and it cannot be established by clear and convincing evidence that one of the persons survived the other, the property of each person shall be administered or distributed, or otherwise dealt with, as if that person had survived the other.” (Probate Code §220)
As the statute makes clear, survivorship must be proven to a standard of clear and convincing evidence. This change in the standard of proof, effective Jan. 1, 1985, was intended to eliminate cases where survivorship appeared to be no more than mere conjecture. See, for example, Estate of Rowley (257 Cal.App.2d 324 (1967)), in which two women were killed in a high-speed automobile accident and the court determined that the victim in the front passenger seat died first on evidence no stronger than the fact that the car was struck from that direction.
(Rowley ignores many possible scenarios where the driver could have succumbed before the passenger. The author has handled numerous estates of individuals dying together in circumstances where it would have been purely conjecture to assume survivorship, including victims of the Jonestown suicide in Guyana, several crashes of private aircraft, and the death of a couple hiking in Hawaii who stumbled on suspected drug traffickers and whose bodies were not discovered for weeks. In the early case of Azvedo, supra., payment of insurance proceeds depended upon whether the beneficiary Anthony survived the insured Sylvia. Both were found dead in Anthony’s home, the murder victims of Anthony’s Aunt Gussie, who subsequently committed suicide. The court remanded the matter back to the trial court, which had earlier ruled the deaths simultaneous. The appellate court made clear its inference that Anthony survived Sylvia because he died after a struggle and she had been killed in her sleep, which the court believed could not have happened in reverse.)
In Illinois at the time of Janus, state law did not call for the higher standard of proof. The then-provisions of the Illinois version of the Uniform Simultaneous Death Act called for a determination of simultaneous death where “no sufficient evidence” existed that one person survived the other. This extraordinarily low level of proof led to the result of Teresa’s family inheriting Stanley’s life insurance, against which good sense rebels. Intestacy rules are intended to approximate the estate planning wishes of the average decedent, and it’s unlikely that Stanley would have wanted Teresa’s family to inherit over his in the event of survivorship for mere minutes, if at all.
The burden of proof rests sensibly with the party who benefits from survivorship. In a case dealing more directly with the similar survivorship requirements under the anti-lapse statutes of Probate Code §21109, et seq., the court ruled that the burden of proof rests with the party who would benefit from survivorship, even when not the petitioning party. (Estate of Lensch (99 Cal.Rptr.3d 246 (2009)) In Lensch, 98-year-old Gladys Lensch died in a San Mateo County nursing home, leaving in a handwritten will one-half of her estate to her son, Jay. His body was discovered later that day, the victim of a self-inflicted gunshot wound. He would have to have predeceased his mother for the operation of the anti-lapse statute to save the gift to his surviving sons, who had been disinherited by him in his own will.) Further, otherwise unsupported facts set forth in a death certificate are not sufficient to meet this burden, nor does the presumption of correctness in Health and Safety Code §103550 shift the burden of proof (Bohrer v. County of San Diego, 104 Cal.App.3d 155 (1980); Romero v. Volunteer State Life Ins. Co., 10 Cal.App.3d 571 (1970); Estate of Lensch, supra).
Nevertheless, the reach of the simultaneous death statute is notoriously uneven. Even when it can be proven by clear and convincing evidence that one person survived another, how long they survived will still determine the right of heirs to inherit.
When either wills or trusts are drafted, in the absence of express provisions setting forth a required period of survivorship before a beneficiary may inherit, those rights accrue even when the period of survivorship is mere minutes. Accordingly, it is prudent and increasingly common for estate planning documents to include survivorship requirements, and practitioners will routinely see provisions for 30 days or more. Longer periods are acceptable, but more than 120 days is discouraged because such a long period results in a terminable interest and the loss of the federal estate tax marital deduction for transfers between spouses. (Internal Revenue Code §2056(b)(7))
The concept of inheritance of property based on survivorship for mere minutes or hours is offensive to many and was the motivation for the Law Review Commission to recommend adoption of provisions similar to those of the Uniform Probate Code, which imposes a survivorship period of 120 hours in cases of intestacy for non-probate transfers such as joint tenancy and beneficiary designation, and for testate succession in the absence of a contrary provision in a will (Uniform Probate Code §2-104. For a case of devolution of property on the merest of evidence before adoption of the clear and convincing standard of proof, see Estate of Schmidt, 261 Cal.App.2d 262 (1968). In Schmidt, husband Max and wife Patricia were killed in a high-speed, head-on collision. After hearing numerous lay and expert witnesses, the court ruled that there was “sufficient evidence” that Patricia survived Max by 10 to 20 minutes. As a result, her assets passed to her family and not his.)
The commission stated:
“[A]s a matter of general policy, it is unfair to determine the recipients of property based on an instant of survival. The commission recommends that the policy reflected in the Uniform Simultaneous Death Act, which generally divides property between the estates of the decedents, should be applied to situations of nearly simultaneous death. Most people who consider the question would want the taker to be someone who is likely to survive for more than a few minutes, hours, or even days. They would not want property to pass to one side of the family solely due to an instant of survival.” (17 Cal. Law Rev. Com. Reports, pp. 447, 448)
This would not only cover situations where two individuals die simultaneously in quick succession from injuries received in the same incident, but also death in near intervals from unrelated events or illness. (See Dukeminier, Sitkoff & Lundgren, Wills, Trust and Estates, 8th Ed. 2009, p. 86, Note 2, recounting an article from The Evening Standard on Nov. 12, 2008, in which it was reported that a wife, riding in a hearse after her husband’s death the day before, was killed by his coffin, which was propelled into her when the hearse was struck from behind by another vehicle.). The recommendations were not adopted when Probate Code §220 was amended in 1983 to add the standard of clear and convincing evidence. But in 1989, the Legislature adopted the 120-hour (five-day) survivorship requirement for intestate succession only in Probate Code §6403, although it extended the requirement to the comparatively infrequent cases in statutory wills under Probate Code §6211.
Accordingly, different types of assets continue to devolve differently based on the timing and circumstances of death. In the case, for example, of a married couple with uncommon heirs, such as a second marriage with children from prior marriages, the heirs will find themselves treated differently based on the length of the interval between the two deaths. The parties will first litigate the issue of survivorship, with each set of heirs attempting to prove by clear and convincing evidence that the person from whom they inherit survived by any measure of time. If they are successful, joint tenancies, pay-on-death multiple party accounts, life insurance, annuities and retirement plans pass to the heirs of the survivor. But intestate assets and assets passing under statutory wills do not so pass, as Probate Code §6403 requires survivorship for 120 hours, so those assets will still pass to the heirs of the first to die unless the survivor lived beyond that period. Finally, there are the assets passing under estate planning documents that incorporate longer survivorship periods, such as 30 days, which also will pass assets to the heirs of the predeceased spouse.
Even in the expertly planned estate, proven survivorship by a few minutes or hours will cause a surviving spouse to be deemed to have predeceased under the provisions of the will or trust requiring survival by 30 days or more, and yet that spouse will continue to inherit under the beneficiary designation of the decedent’s retirement plan, often the couple’s largest asset. This would have been the case following the death of Stanley Janus, as the asset in dispute consisted of the proceeds of life insurance, which no properly drafted will or trust would have affected. Only a specially crafted beneficiary designation would avoid this result, which most estate planners do not prepare. Even when they address assets that pass by beneficiary designation, estate planners will often simply instruct clients on whom to name as beneficiary on qualified retirement plans, IRAs, 401(k) plans and life insurance.
Thus, while the simultaneous death provisions, including the presumption of dual survivorship and the clear and convincing standard of proof, applies to the devolution of virtually all types of property (including Probate Code §§222 (beneficiary designations), 223 (joint tenancies), and 224 (life or accident insurance)), most estate vehicles remain unaffected by the 120-hour rule. The resulting inequity of application can result in different assets passing to different heirs depending upon the length of survivorship, the existence of a will, and the presence of non-probate property.
• Mark J. Phillips is a partner with Goldfarb, Sturman & Averbach in Encino and a certified specialist in Estate Planning, Trust & Probate law.
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