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The term commorientes derives from the Latin ‘commorior’ meaning ‘to die together’. In modern law, the commorientes rule confirms a presumption of survivorship for the purpose of defining the succession of an estate where two people pass away and it is medically or practically impossible to determine which of them died first. In this article, we will be exploring the commorientes rule, including discussions on how intestacy rules and inheritance tax applies, and will be looking at a real-life case that was decided using the rule.
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Where the commorientes rule applies.
The rule states that where two persons, leaving an estate to one another, pass away with no indication of who died first, the deaths are presumed to have occurred in order of seniority.
This means that the elder is presumed to have died first, and then the younger. This can get complicated where one or both of the deceased persons has left some or all of their estate to the other. The rule will determine the provisions of either of the deceased’s Wills to apply, or the order of inheritance as per the intestacy rules where there is no Will.
A brief history.
Prior to the introduction of the statutory commorientes rule within section 184 of the Law of Property Act 1925, the rules relating to the order of deaths in these circumstances were common law, established by decisions made in the English courts. There was no presumption of succession and this often led to claimants being unable to inherit from their deceased relatives.
This state of affairs, where courts would make rulings with little to no evidence, would often lead to cautious judgments. These rulings would determine that the victims did not die together. A decision on inheritance therefore differed case by case, dependent on the evidence. This led to dissatisfaction over inconsistent and unpredictable outcomes to claims.
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Intestacy rules.
An important point to note is that, where a spouse dies intestate, the commorientes rule will not apply for gifts from one spouse to the other, should the older spouse die intestate. This is because in order to inherit under the intestacy rules, the deceased’s spouse must survive for 28 days, in accordance with section 46 of the Administration of Estates Act 1925.
However, the commorientes rule does apply where spouses die owning property together as joint tenants. A property is held as joint tenants if both spouses own the whole property together as opposed to having distinct shares of the property. In this case, the younger spouse inherits the property. This is in accordance with the doctrine of survivorship, which is separate from and outside of intestacy rules.
Inheritance tax.
The purpose of the commorientes rule is to determine who should inherit an estate, i.e., it answers the question of succession. The rule and the presumptions it implies do not apply for inheritance tax purposes.
Where the commorientes rule does apply between two individuals, for the calculation of inheritance tax in each of their estates, the two deceased persons presumably died at the same instant. This prevents double taxation of the elder’s estate.
For example, if a mother and her son die at the same time, and the mother leaves her entire estate to her son, inheritance tax will not be payable on the mother’s estate and then the combined value of the mother’s and the son’s estate. Instead, inheritance tax is separately charged on both estates. This is helpful for tax and in terms of the administrative burden for the probate process.
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Scarle vs Scarle.
On 11 October 2016, Mr and Mrs Scarle, aged 79 and 69 respectively, were found dead in their bungalow. The coroner judged that both had died sometime between the 5th and 9th of October. Neither had written a will and they were joint tenants of their bungalow and had a joint bank account containing around £18,000 at their time of deaths. Both Mr and Mrs Scarle had children from previous relationships and so the beneficiaries of their estate were dependent upon which of the couple survived the other.
Mr Scarle’s daughter argued that due to evidence suggesting that Mrs Scarle had undergone a higher level of decomposition, it was clear that she had passed away first. This would mean that Mr Scarle and then his beneficiaries would inherit the combined estates of the couple.
However, the coroner was unable to determine the order in which the couple had passed away. The court applied the commorientes rule not between the spouses (as all their property was held jointly). This was to determine who should inherit between their beneficiaries. They presumed that Mr Scarle, as the more senior, had passed away first, meaning the entire estate passed on to Mrs Scarle’s daughter.
Elisabeth's closing comment
This type of case is uncommon, with it being unusual to have to rely on the commorientes rule to determine the beneficiaries of a couple’s estate.
However, this highlights the importance of having a written Will to ensure that your wishes are properly recorded and to avoid an unpredictable and potentially unwanted distribution of your estate upon your passing.
Why contact our private client solicitors?
To ensure that your estate is inherited by your chosen beneficiaries, it is imperative that you have a will written by the time of your passing.
For an initial consultation of £120 plus VAT, we can offer you:
- Unlimited time to go through your estate and assets and ask any questions you may have
- An overview of your inheritance tax situation and your available options
- A precise time and fee estimate for planning your estate
If you would like to speak to someone about estate planning, contact our solicitors on 0203 007 5500. Furthermore, visit our wills page for more information.
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