Surviving Spouse

Under intestacy and under wills and nonprobate instruments, who dies first largely determines who gets what from the estate of the deceased. Since a surviving spouse inherits the bulk of the estate from the deceased spouse, if the surviving spouse dies shortly thereafter and if the couple had no children together, then the heirs of the surviving spouse could get everything while the heirs of the 1st spouse to die get nothing.

Years ago, it was unlikely that a couple would die together. But in this age of trains, planes, and automobiles, simultaneous or near simultaneous death has increased in frequency.

Under common law, much of it developed years ago, a spouse only had to survive 1 millisecond to be a surviving spouse, and this 1 millisecond difference could mean that some heirs receive everything while others receive nothing. Naturally, this led to a great deal of litigation among the heirs. Instead of grieving together, the common law motivate them to sue each other to maximize their inheritance or to prevent the loss of a rightful inheritance. And, of course, litigation also maximizes the fees collected by the probate court and the attorneys representing the parties, which is probably why this patently unfair common law has persisted for so long. However, things are getting better. The modern trend is that the surviving spouse must survive by at least 120 hours, or 5 days, and even nonprobate instruments, such as life insurance policies, require that the spouse survive by 30 days or more.

Real World Example—Janus v. Tarasewicz

In Janus v. Tarasewicz, 482 N.E.2d 418 (Ill. App. Ct. 1985), Stanley and Theresa Janus, 19, returned from their honeymoon, only to discover that Stanley's brother had died. The family went to his residence, and because both Stanley and Theresa were upset about the sudden death, they took Tylenol which, unknown to them as it was to the recently deceased brother, was laced with cyanide. Stanley was pronounced dead shortly after arriving at the hospital. Theresa exhibited some vital signs and was put on life support, but 2 days later, she, too, was pronounced dead.

Stanley had a life insurance policy that was to pay Theresa $50,000, but if she predeceased him, the money would go to his mother, Alojza Janus. Since the death certificate for Stanley listed his date of death as September 29, 1982 and Theresa's death certificate listed her date of death as October 1, 1982, the life insurance company paid the proceeds to Theresa's estate. Stanley's mother filed suit against the insurance company and against Stanley's and Theresa's estates, claiming the insurance proceeds as a contingent beneficiary, but the court ruled that there was sufficient evidence that Theresa had survived Stanley even though she was on life support and her vital signs were sporadic during the time.

Note: Seven people were killed by lacing Tylenol with cyanide: 7 women (1 of the women had recently given birth), 2 men (Stanley Janus and his brother), and a 12 year old girl. It was this crime that caused companies that sell consumer goods for consumption to start packaging their products in secure packaging where it could be obvious if someone tampered with it. Labels on the products had the warning not to consume the product if the packaging had been opened or tampered with. The person who committed this horrific crime is still at large. Here are some updates on the case:

Who Qualifies as a Spouse

A couple must generally go through a marriage procedure that is valid under the law of the state in which they are married in order to be considered as spouses. Cohabitants do not qualify, and thus, a surviving cohabitant would receive nothing under intestacy.

However, if the state recognizes common law marriage, and the couple holds themselves out to be married and they have lived together the minimum amount of time to be considered married, then they are treated as spouses under state law. Most other states recognize common law marriage, but a few jurisdictions do not.

Same-sex couples are being increasingly recognized as a married couple or the states have provisions for reciprocal beneficiaries, civil unions, or domestic partnerships. Although most states currently do not recognize same-sex marriages, this will most certainly change. The Defense of Marriage Act (DOMA), passed in 1996, buttressed this position, by providing that the privileges and rights of married partners under federal law do not extend to same-sex couples nor do the states have to recognize, under the Full Faith and Credit Clause of the Constitution, same-sex marriages conducted in other states. However, DOMA was overturned by the Supreme Court on 6/26/2013.

Until the final judgment of the dissolution of the marriage, legally separated spouses are still considered spouses under the intestacy law of most states. However, if a spouse abandons the other spouse, the abandoning spouse may not inherit from the abandoned spouse.

Putative spouses, where at least 1 of the spouses considers themselves to be married, but did not satisfy the legal requirements for marriage, because the marriage was either void or voidable, are still considered spouses under the intestacy laws of most states. A marriage may be void or voidable if the marriage ceremony was invalid, if one of the spouses was already married, or if the couple is more closely related than allowed by state law.

Survival Requirements for any Beneficiary

In most cases of the legally simultaneous death of heirs, it is usually a married couple, since they tend to travel together and engage in common activities. But the law has certain requirements for survival that apply to any beneficiary. If the beneficiary does not survive the decedent by the requisite amount of time or the beneficiary's representative is unable to prove it, then the beneficiary is treated as having predeceased the decedent, and so, any condition in a will or nonprobate instrument or a stipulation of law on the beneficiary predeceasing the decedent takes effect.

Both the amount of time and the burden of proof for survival vary widely among the jurisdictions, and both factors can differ for different types of property—whether it is probate intestate, probate testate, or nonprobate property.

Under common law, a beneficiary (more likely the beneficiary's representative) had to prove by the preponderance of the evidence that he survived the decedent by a single millisecond.

To lessen the litigation and expense of court fights, the Uniform Simultaneous Death Act (USDA) was published in 1991 by the National Conference Of Commissioners On Uniform State Laws and which has been adopted by most states, which provided that if it is not clear who survived whom, then any party claiming a right to take is treated as having predeceased the decedent.

Under common law, death was considered to have occurred when there was an irreversible cessation of the circulatory and respiratory functions. Today, with advanced technology enabling artificial life support, this definition is inadequate. The modern trend is to equate death with the cessation of any brain activity.

To reduce litigation among family members, some states have increased the burden of proof, from the preponderance of the evidence to the clear and convincing evidence standard, but many have criticized that even that is not enough to deter family members from suing each other when a lot of money is at stake.

The UPC (UPC §§2-104, 2-702) has adopted the 120 hour (5 day) standard, in which any claimant must prove by clear and convincing evidence that she survived the deceased by at least 120 hours. The USDA has been amended to conform to the UPC 120 hour rule.

Survival Criteria in Wills and Nonprobate Instruments

As already mentioned, the actual survival criteria that applies to a given jurisdiction varies widely. However, the survival criteria can be made explicit in a will or nonprobate instrument, such as an inter vivos trust. If the will has a simultaneous death clause, which can make explicit the criteria for survival, then that will apply. Nonprobate instruments can also define the criteria for survival. Life insurance policies, for instance, commonly have a common disaster provision, where the policyowner can specify that the beneficiary must survive the policyowner by a certain amount of time, typically 10, 15, or 30 days when both die as the result of a common disaster.