Survivorship When Father and Son Hanged Together

To be an heir, an individual must outlive the intestate.  At common law and under the 1953 version of the Uniform Simultaneous Death Act, an heir needed to survive the intestate for only a mere instant to be entitled to inherit.  This rule lead to many proof problems as family members tried to prove that one person outlived the other or vice versa.  Some of these cases read like horror novels as the courts evaluate evidence of which person twitched, gurgled, or gasped longer.

In one old case, Crown Elizabeth 503, a father and son were, in the words of Blackstone:

“both hanged in one cart, but the fon was fuppofed to have furvived the father, by appearing to ftruggle longeft ; whereby he became feifed of an eftate by furvivorfhip.”

Most jurisdictions now impose a survival period, that is, the heir must outlive the intestate by a statutorily mandated length of time before being entitled to inherit.  Under the 1991 version of the Uniform Simultaneous Death Act and UPC § 2-104, the heir must outlive the intestate by 120 hours (5 days).  If an heir survives the intestate but dies prior to the expiration of the survival period, the intestate’s property passes as if the heir had actually predeceased the intestate.