Homeowner Deaths within 120 Hours

Presented by: Kay Creasman, VP & Counsel

Question from an agent:

My aunt and uncle recently passed away within days of each other. My aunt, a co-owner of her home, passed away on January 26th and her husband, my uncle and also a co-owner, passed away on January 30th. They owned their home as tenants by the entirety with right of survivorship.

My thought is that the house is now owned by two different estates because they did not survive each other by 120 hours. Is that the case? Or, is it possible that the house is now owned solely by my uncle’s estate, since he was the second of the two to die? The probate clerk is saying it all belongs to my uncle because of the tenancy’s survivorship.

Reply:

My initial response was that the probate clerk was correct. The 5-day rule would apply, and the real estate would pass half to one estate and half to the other. What happens then depends on the standard variables. Did they have reciprocal wills or die intestate? Did they have the same descendants and only the same descendants? Etc.

But that’s not what the Code says. Section §64.2-2200 et seq. is the Uniform Simultaneous Death Act, which covers the situation when “co-owners with right of survivorship” die less than 120 hours apart. Co-owners with right of survivorship is a defined term and includes tenancy by the entirety, which, in Virginia, can apply to any type of property, real or personal.

The standard rule is that “an individual who is not established by clear and convincing evidence to have survived the other individual by 120 hours is deemed to have predeceased the other” and does not inherit the property (§64.2-2201). But exceptions do exist. If applying this rule “would result in a taking of an intestate estate by the Commonwealth,” the rule doesn’t apply. An example would be our married couple in the original situation above. The wife died testate; the husband died intestate without descendants or any family that can be located. In this situation, the wife’s half interest in the property would be devised according to her will and the husband’s half interest would eventually escheat to the Commonwealth, but the whole would not become property of the Commonwealth. Section §64.2-2203 makes this clear.

Section §64.2-2205 lists additional exceptions, which include the existence of a will or other governing instrument eliminating the 120-day survivorship rule or imposing a different time period.

Rarely do we see multiple owners passing away within days of each other, unless they are in a common disaster, such as an auto accident, hurricane, fire or similar catastrophe. However, since 1994, the Code of Virginia has statutes that assist with deciding how to handle the ownership of property in the rare instances that such an event occurs.