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State is Virginia. If a husband and wife, both intestate,

State is Virginia. If a husband...
State is Virginia.

If a husband and wife, both intestate, die simultaneously in a car crash, is the husband considered to have died before the wife? If they survive the crash but both die, at different times, in the ambulance on the way to the hospital, can the paramedics testify as to the order of death, or must it be a matter for a doctor?
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Answered in 7 minutes by:
8/23/2013
LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 11,438
Experience: Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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LegalGems :

Clear and convincing evidence would need to be established that one spouse outlived the other by 120 hours, otherwise it is considered that they predeceased. However, this statute will not be used to result in the property escheating to the state. http://vacode.org/64.2-2201/

LegalGems :

The death certificate is what is generally used. However, a nurse or physician's assistant can also make the determination. (so generally not an EMT/paramedic). However, the statute also provides in subsec 4 that circumstantial evidence may be used to establish death, so this would permit evidence obtained in the ambulance. http://vacode.org/64.2-2204/

LegalGems :

I am including a link to the statute that governs exceptions, in case they pertain to your situation. http://vacode.org/64.2-2205/

Customer:

So, if the wife is killed instantly but the husband survives less than 120 hours after the accident, the intestate succession is husband > wife > wife's family (according to the rules of intestate succession). If the husband lasts for more than 120 hours, the succession is wife>husband>husband's family. Am I right?

LegalGems :

In order to inherit, the spouse would need to survive by 120 hours or more. If not, (if 119 hours or less), then they are considered simultaneous, which means wife's assets go to wife's family, husband's assets to husband's family.

LegalGems :

But again, if this is for estate planning purposes, this can be avoided by the use of a will.

Customer:

Thank you. I am using your response to persuade my daughter and her husband to make wills, Their assets consist mainly of a house (as tenants by the entirety) and cars (both names on the titles) and joint bank accounts. In the event of simultaneous deaths, will these assets be split between husband's family and wife's family?

LegalGems :

Oh perfect. Glad to hear it is not an actual situation as that would be devastating. Yes, in simultaneous death, her portion would go to her family (ie 50% of house) and his portion to his family. They should also make a will with a residual clause - this handles property that is not specifically addressed in the will i.e. if they inherit property right before they die, this would go via the residual clause. It is always a good idea to have a will, and nowadays you can get one for only a few hundred dollars - money well spent!

LegalGems
LegalGems, Attorney
Category: Estate Law
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Experience: Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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