Joint Tenancy Problems If A Couple Dies Simultaneously

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Posted in : Blog, Wills, Trusts, and Estate Planning, California Probate on 4/12/2021 by Christine Padilla, Attorney

Joint Tenancy Problems If A Couple Dies Simultaneously

Assume Jack and Jill are married and involved in an unfortunate car accident. Jill has 2 children from a previous marriage, and Jack has no children. Jill passes away immediately, and Jack passes away at the hospital a day later. What happens to the married couple’s estate in a situation such as this, where they die together? What are potential joint tenancy problems if a married couple dies simultaneously?

The answer to this question depends on many factors, including whether the couple had an estate plan in place such as a trust or will, and how the couple held title to their assets. In the event a couple had an estate plan including a trust in place, their assets will be distributed to their beneficiaries in accordance with the distribution plan the couple set forth in their estate planning documents.

However, let’s assume Jack and Jill did not have a will or trust, and instead just held their real estate and accounts jointly, as some married couples do.  When assets are held jointly, the surviving spouse is typically able to inherit these assets simply, without the need for a court supervised process known as Probate. Unfortunately, this plan becomes ineffective if misfortune occurs and both spouses pass at or near the same time.

Under a law known as The Uniform Simultaneous Death Act, in order for an heir (including a spouse) to inherit, the heir must survive the decedent by at least 120 hours (5 days). In the event the heir does not survive the decedent by 120 hours, the law treats the heir as having died simultaneously at the same time as the decedent, and this leaves the estate subject to Probate.  A decedent’s estate that is subject to Probate is passed through the Court system to the decedent’s heirs (close relatives) according to state intestacy laws.

In the situation above, Jack would have received a share of Jill’s estate, if Jack was considered the surviving spouse. However, because Jack did not survive Jill by the required 120 hours, the law will treat this situation as a simultaneous death.  When two spouses pass away at the same time while holding assets jointly, they each have their own separate decedent estates.

Since both spouses died simultaneously, Jill’s share of the estate would now be forced to go through Probate. Ultimately the Court would pass her share of the estate to her heirs next in line (her children). If her children were minors at the time, the process would be further complicated, as the Court would need to approve guardians for the minors. Jack’s share of the estate, meanwhile, would also now be subjected to Probate, and ultimately passed to his heirs next in line (his parents, or siblings, etc., since Jack didn’t have any children).

Note that a different outcome would result if Jack had survived Jill by over 120 hours, but then still passed away. If, for example, Jack lived for a week in the hospital before passing, Jack would be considered the surviving spouse.  Assuming Jack and Jill held title to all of their assets jointly, all of Jill’s share of the assets would have automatically passed to Jack. Upon his passing, however, the entire estate would be forced to go through Probate. Ultimately Jack’s heirs would be the heirs to the couple’s estate, and, because Jill’s children are from a prior marriage and not likely considered Jack’s heirs, Jill’s children could end up receiving nothing.

The above illustrates just one of the scenarios that can occur with assets held in joint tenancy without any further estate planning in place. While we cannot predict our future, we can make decisions now that will provide our family and loved ones with a well thought out plan that will guide them after we are gone. If you have not yet developed an estate plan for your family, or need assistance in revising your current estate plan, we invite you to contact the Law Office of Christine Padilla for a complimentary estate planning consult. –Christine Padilla, San Diego Attorney at Law

Christine Padilla

Owner and Attorney at Law