Folkerth, Jack W.

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The Uniform Simultaneous Death Act For OhioWith the developments in modern transportation, and largerand more frequent mass gatherings today, the incidence of simul-taneous deaths has greatly increased. One of the many legal prob-lems resulting from such deaths involves the devolution of property.For example, a husband and his wife are riding on a train. There isa serious accident which, as far as the facts are ascertained, re-sults in the simultaneous deaths of the married pair. Whose heirsshould get their respective property? Do their wills, if they haveany, take care of this particular exigency?Under civil law codes, when such deaths occurred a presump-tion was spelled out in terms of the age and sex of the decedents.Louisiana has adopted such a method.'A few jurisdictions presume that both died at the same time,2so that one seeking to prove that his donor survived the other mustovercome the presumption.A third rule, the one adopted by most common-law states, isthat there is no presumption as to survival. Hence the necessity ofadditional proof to overcome a presumption is absent, yet this rulegives no adequate solution to the riddle. One whose rights dependupon the survival of one of the decedents, has the burden of proofto show such survival, but if the deaths were truly simultaneousthis burden could not be met.The law in Ohio is unsettled as to whether we follow the com-mon-law rule of no presumption I or the rule that both are pre-sumed to have died simultaneously.4I "If those who have perished together were under the age of fifteenyears, the eldest shall be presumed to have survived."If they were above the age of sixty years, the youngest shall bepresumed to have survived."If some were under sixty years of age, and some were sixty yearsof age or older, the first shall be presumed to have survived."If some were under the age of fifteen years, and some were fifteenyears or older and less than sixty years of age, the latter shall be presumedto have survived."If those who have perished together were fifteen years of age or olderand under sixty years, the male shall be presumed to have survived, wherethere was an equality of age or a difference of less than one year, other-wise the younger must be presumed to have survived the elder whethermale or female." LA. Crv. CODE, Art. 938, 939 (1947).2 Conway and Bertsche, The New York Simultaneous Death Law, 13FoaD L. REV. 19 (1944).3 Ware v. Kinch, 29 Ohio C.C. (N.S.) 353 (1919).- In re Francis, 29 Ohio Op. 502 (P. Ct. 1940).684COMMENTSTnE UNIFo~u ACT AND THE OHIO STATUTESThe Uniform Simultaneous Death Act was drafted to meet theproblems arising from simultaneous deaths.5 This Uniform Act hasbeen enacted in thirty-four states since its drafting in 1941.6Section 1 of the Act provides:Where the title to property or the devolution thereofdepends upon priority of death and there is no sufficientevidence that the persons have died otherwise than simul-taneously, the property of each person shall be disposed ofas if he had survived, except as provided otherwise in thisAct.7Ohio adopted a statute in 1932 which covers in substance thesame material as found in the above section." The intent and effecthas been that the tproperty which belonged to each decedent priorto his death shall descend to his respective heirs at law. There is nopresumption established but rather another arbitrary answer to theproblem.Section 2 governs the disposition of property when successivebeneficiaries die at the same time. It states:Where two or more beneficiaries are designated to takesuccessively by reason of survivorship under another per-son's disposition of property and there is no sufficient evi-dence that these beneficiaries have died otherwise thansimultaneously the property thus disposed of shall be di-vided into as many equal portions as there are successivebeneficiaries and these portions shall be distributed respec-tively to those who would have taken in the event that eachdesignated beneficiary had survived.9This section would be applicable in only a few situations. Oneis where A gives B a life estate and the remainder to C if C sur-vives B, otherwise to D. If B, C, and D died simultaneously theproperty would be divided between C and D. Perhaps the term"alternatively" should be used as well as the term "successively"to avoid a strict interpretation of the latter term.10 Ohio's present5 9 UNiFomW LAWS ANN. 657 (1942).6 Ark., Cal., Colo., Conn., Del., Fla., Hawaii, Idaho, Ill., Ind., Iowa,Kan., Ky., Me., Md., Mass., Mich., Minn., Mo., Neb., N. H., N. J., N. Y.,N. C., N. D., Ore., Pa., R. I., S. D., Tenn., Vt., Wash., Wis., and Wyo. 9UNiFoRm LAWS ANN. 182 (Supp. 1947).79 UImronmv LAws ANN. 659 (1942).8 'TWhen there is no evidence of the order in which the death of two ormore persons occurred, no one of such persons shall be presumed to havedied first and the estate of each shall pass and descend as though he hadsurvived the other or others... ." Oxno GEN. CODE § 10503-18 (1938).69 IUNkomw LAws AN 659 (1942).10 KAN. LAWS c. 239 § 2 (1947); WASH. REv. STAT. AwN. § 1370-2 (Supp.1943).1948]OHIO STATE LAW JOURNALstatutory law will not settle the above problem; rather, the resultwould depend upon which one has the burden of proof.Section 3 provides:Where there is no sufficient evidence that two jointtenants or tenants by the entirety have died otherwise thansimultaneously the property so held shall be distributedone-half as if one had survived and one-half as if the otherhad survived. If there are more than two joint tenants andall of them have so died the property thus distributed shallbe in proportion that one bears to the whole number ofjoint tenants."This section, in its present form, would be of doubtful applica-tion in Ohio. Conveyances of either personalty or realty to two ormore persons are almost uniformly construed to create tenancies incommon rather than joint tenancies. 1 2 Joint tenancies in land aresaid not to exist in Ohio. 3 The same result is reached when thereis a conveyance to a husband and wife.14 However, instruments giv-ing a common interest to two or more persons with a right of sur-vivorship are recognized as valid." The section is apparently notapplicable to persons who take under such an instrument. If it wereto provide for this contingency, the scope of its application wouldbe greatly increased.The above sections of the Uniform Act and the Ohio statutedealing with simultaneous deaths govern the distribution of prop-erty belonging to the decedent at the time of his death. The pro-ceeds of an insurance policy do not come into existence until thedeath of the insured and are not deemed to be the decedent's prop-erty. So such a statute as Section 4 of the Act is a necessary one.Section 4. Where the insured and the beneficiary in apolicy of life or accident insurance have died and there isno sufficient evidence that they have died otherwise thansimultaneously, the proceeds of the policy shall be dis-tributed as if the insured had survived the beneficiary. 6Under the present Ohio law, if the insured reserved the rightto change the beneficiary and the insured and beneficiary die at thesame time, the heirs of the insured would take the proceeds of thepolicy.'7 Since the insured has reserved the right to change the1"9 UNIFORm LAWS ANN. 660 (1942).12 Wilson and Marsh v. Fleming, 13 Ohio 68 (1844).13 Sergeant v. Steinberger, 2 Ohio 1 (1826); Lessee of Miles v. Fisher,10 Ohio 1 (1840).'14Farmers' & Merch. Bank v. Wallace, 45 Ohio St. 152, 12 N.E. 439(1887).15 In re Hutchison, 120 Ohio St. 542, 166 N.E. 687 (1929); Martin, TheIncident of Survivorship in Ohio, 3 O-O ST. L. J. 48 (1936).I6 9 UNIFoRm LAWS ANN. 660 (1942).'7 In re Francis, 29 Ohio Op. 502 (P. Ct. 1940).[Vol. 9COMMENTSbeneficiary, the beneficiary does not have a vested interest in thepolicy and hence the heirs of the beneficiary have the burden ofproof of showing that the beneficiary survived the insured. Wherethe insured has not reserved the option to change the beneficiaryand the policy was payable to the beneficiary if surviving, it hasbeen held that the beneficiary has a vested interest, subject to.be-ing divested by her predeceasing the insured and that the repre-sentatives of the insured have the burden of proof that the benefic-iary had not survived the insured.1 8It is apparent that the drafters of this Uniform Act have feltthat the insured has the primary interest in determining who shouldget the proceeds of the insurance policy, and that normally he wouldrather have his heirs possess the funds if the one he had chosencould not participate in the benefits. To be sure, if the policy ex-pressly provided that the beneficiary and his heirs and assignsshould take regardless of the priority of death then the courtswould not have to rely on the presumption established by the Act.-0Section 5 provides that, "This Act shall not apply to the dis-tribution of the property of a person who has died before it takeseffect." 20 It is inserted to prevent any attempted retroactive ap-plication of the Act. New York and Massachusetts have both addedto this section an additional precaution so that the Act will notaffect any property passing under an instrument, other than a will,executed before the effective date of the Act.2'Section 6 is a limiting provision:This Act shall not apply in the case of wills, livingtrusts, deeds, or contracts of insurance wherein provisionhas been made for distribution of property different fromthe provisions of this Act.22Naturally if the intent of testator, donor, grantor or insured isclear then it should be followed. The main provisions of the Actare established to handle those unfortunate situations wherein onehas not expressly provided for the distribution of his property inlight of the possibility of simultaneous deaths.CONCLUSIONIt should be pointed out that this Act is not limited to deathsoccurring in common disasters but rather to those deaths wherethere is no evidence to show that they died other than simulta-18 United States Casualty Co. v. Kacer, 169 Mo. 301, 69 S.W. 370 (1891).19 13 FoRD. L. REV. 19, 31 (1944).20 9 UNInom LAws ANN. 660 (1942).21 N. Y. DEc. EST. LAW § 89 (5); MASS. GEN. LAWS C. 190A, § 2 (.Cum.Supp. 1947).22 9 UNn'osm LAws ANN. 660 (1942).1948]OHIO STATE LAW JOURNALneously. Too, this Act does not change the rules of evidence as towhat quantum of evidence is necessary to show survival. Rather,once the court has determined that there is no sufficient evidencethen the Act establishes an orderly and equitable distribution ofthe property and obviates the necessity of the court's using littleor no evidence to establish the priority of death.2"3The Act apparently has covered every possibility as to thedistribution of property following simultaneous deaths of the par-ties having an interest in the property. It goes much further thando the present Ohio statutes. To be left to the unprovable burden-of-proof formula as we now have in all situations other than thatcovered by General Code Section 10503-18 is too harsh a solution.This Uniform Act, which affords an equitable distribution of prop-erty and which provides for ease in handling, would be an assetto the laws of Ohio.Jack W. Folkerth23 See Ware v. Kinch, 29 Ohio C.C. (N.S.) 353 (1919).[Vol. 9

The Uniform Simultaneous Death Act For Ohio

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The Uniform Simultaneous Death Act For Ohio

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