HM Insights

What happens if both spouses die at the same time?

Common Calamity in Scotland

In Scotland, if a couple is involved in an accident in which they both die, the law in Scotland will presume that neither survived the other. Section 9 of the Succession (Scotland) Act 2016 states that:



"Where two persons die simultaneously or in circumstances in which it is uncertain who survived whom, each is to be treated as having failed to survive the other for all purposes affecting title or succession to property."

This is different from the law in England & Wales therefore below we highlight the differences and the importance of keeping your will up to date to prevent a protracted legal dispute arising in the future. 

Differences in Common Calamity between Scotland & England

For example, Mr and Mrs Millar, aged 65 and 60 respectively, have children from previous relationships.  They have Wills leaving their estates to each other whom failing their own children.  Mr and Mrs Millar both die in a car accident and it cannot be determined who died first.  In England, it would be presumed that Mrs Millar survived Mr Millar and she would inherit her husband's estate under the terms of his Will.  Mrs Millar's Will would then take effect and this would see the entire estate passing to Mrs Millar's children, leaving Mr Millar's children with nothing from their father's estate.

If, however, this took place in Scotland, it would be presumed that neither spouse survived the other.  Mr Millar's estate would bypass his wife and pass directly to his children and Mrs Millar's estate would bypass Mr Millar and pass directly to her children.

While Scots law in this regard appears fairer than that of the law in England, it is very important to consider whom failing provisions within your Will.  Spouses should also consider preparing mirror Wills, meaning that their Wills contain the same instructions so that if they both pass away their estates pass to the same person(s).  

Scarle v Scarle Case in England

Earlier this year, a High Court Judge in England handed down a judgement following the question of who died first when a married couple were found dead together at home.

Mr and Mrs Scarle had both been married previously and each had children from their past relationships.  Mrs Scarle had made a Will leaving her estate to her son and daughter.  Mr Scarle had no Will meaning that, under the laws of intestacy, if he had died after his wife his estate would pass entirely to his daughter.  If, however, Mrs Scarle had survived her husband, she would receive his estate.  A dispute arose as it was unknown who died first.

In England and Wales, when two or more people die in a situation where it is unclear who died first, the commorientes rule applies.  This presumes that the order of death is determined by age, with the oldest person dying first and the youngest dying last.  This can have a huge impact on who inherits an estate.

Mrs Scarle was 10 years younger than her husband and, therefore, the law in England presumes that she survived her husband.  In England, this presumption can be rebutted and so Mr Scarle's daughter tried to prove "beyond reasonable doubt" that Mrs Scarle died first.  This challenge was unsuccessful and the Judge ruled, based on the commorientes rule, that Mrs Scarle survived Mr Scarle.  As a result, Mr Scarle's estate passed to his wife, whose estate then passed entirely to her children, meaning that Mr Scarle's daughter received nothing.

We're here to help

The Scarle v Scarle case is an important reminder that Wills should be kept up to date, and proper legal advice should be taken in relation to your wishes and current circumstances to ensure the appropriate people benefit from your estate.  It may also be wise to have open discussions with family members about your intentions on death however difficult this may be, as it could prevent a protracted legal dispute arising in the future. 

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