Simultaneous Deaths: Testator's Will vs State Law

Article excerpt

Claud and Jean Acord, husband and wife, and both residents of Arizona, were involved in a car accident on June 24, 1983. Claud was killed instantly, and Jean died approximately 38 hours later. The couple was childless, and Claud's will bequeathed all of his property to Jean, but also contained a clause stating: "In the event my beloved wife, Jean Acord, dies before I do, at the same time as I do, or under such circumstances as to make it doubtful who died first I hereby give, devise, and bequeath all my property to alternate devisees (family members)."

The State of Arizona's Revised Statute Sec. 14-2601 requires a devisee to survive the testator by 120 hours to lawfully inherit. The statute reads as follows:

A. "A devisee who does not survive the testator by one hundred twenty hours 15 treated as if he predeceased the testator, unless the will of decedent contains some language dealing explicitly with simultaneous deaths or deaths in a common disaster, or requiring that the devisee survive the testator, or survive the testator for a stated period, in order to take under the will.

B. If the time of death of the testator, the devisee, or both cannot be determined and it cannot be established that the devisee has survived the testator by one hundred twenty hours, it is deemed that the devisee has failed to survive for the required period."

The IRS claimed that the common disaster clause in the testator's will was sufficient to override Arizona's statutory requirement that devisees survive the decedent by at least 120 hours. Under this construction, Claud's assets passed to Jean's estate since Jean had survived Claud by 38 hours. As a result, Jean's estate would owe $151,544.96 in additional taxes.

THE ESTATE CHALLENGES THE IRS

The Estate argued that the language of the will was not sufficient to override Arizona's statutory provision as the will did not contain any provision requiring Jean to survive him by any particular time. …

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