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Can A Deceased Beneficiary Still Inherit Under A Will?


A common question that comes up in probate administration is, “What happens to the share of a beneficiary who dies before the estate is administered?” To give a hypothetical example, say George died on February 1. His will left half of his estate to one of his children, Sarah, but she died in an accident two weeks later on February 14. Does Sarah–or in this case, Sarah’s estate–still inherit from George’s estate?

The answer depends on the wording of George’s will. Many wills impose a “survivorship period” of some sort. For example, the will might provide that a beneficiary must survive the testator by 30 days to inherit their share. If George had such a clause in his will, then Sarah’s estate would not inherit from George’s estate, as she did not survive him by 30 days.

Now, you might have seen some sources that talk about a “120-hour rule” when it comes to survivorship. The Uniform Probate Code, a model law followed by a number of U.S. states, recommends a rule that requires beneficiaries of an estate to survive the testator by five days or 120 hours. Florida does not follow this rule. Indeed, as far as Florida law is concerned, a person could survive a testator by 5 minutes and still inherit from their estate, provided the will does not impose its own survivorship period.

How Florida Law Treats “Simultaneous” Deaths

Now, what about a situation where the order of death is impossible to determine? The commonly cited hypothetical case here are two spouses killed in the same car accident. If it’s impossible to determine which one died first, how does the probate court sort things out?

Section 732.601 of the Florida Statutes–commonly known as the “Simultaneous Death Law”–makes the answer to this question fairly simple. If there is “insufficient evidence that the persons have died otherwise then simultaneously, the property of each person shall be disposed of as if that person survived.” In other words, each spouse is legally presumed to have died before the other. This may not make logical sense, but it does make legal sense. Basically, each spouse’s estate is administered as if the other spouse was already deceased.

You will notice the law only applies when there is “insufficient evidence” to disprove simultaneous death. So in a situation where there is some evidence–but no conclusive proof–that one party died before the other, the court may still be forced to conclude there was legally a simultaneous death. And once again, if either party’s will contained a survivorship clause, that may end up mooting the question of simultaneous death.

Speak with a Florida Probate Administration Lawyer Today

Disputes over the order of multiple deaths can lead to litigation. If you need legal advice from an experienced St. Petersburg probate litigation attorney, contact Legacy Protection Lawyers, LLP, today to schedule a consultation today with a member of our team.



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