Inheritance and Presumptions

T.P. Gallanis, Death by Disaster: Anglo-American Presumptions, 1766-2006, in The Law of Presumptions: Essays in Comparative Legal History (R.H. Helmholz & W. David H. Sellar eds., 2009), available at SSRN.

The problem of simultaneous death has troubled inheritance law for many centuries.  If a common accident kills both Mother and Son, and Mother’s will names Son as her primary devisee, does Mother’s property pass through Son’s estate to his heirs?  Or does it pass instead to the person next in line under Mother’s will?

American teachers of trusts and estates know where to look for the answer to this question:  a statute.  Since the mid-twentieth century, widely adopted uniform acts have attempted to solve the puzzle of simultaneous death by establishing a presumption of survivorship.  Yet this was not always the case.  In his new article, “Death by Disaster: Anglo-American Presumptions, 1766-2006,” Thomas Gallanis explores the history of the Anglo-American law of simultaneous death from the eighteenth century to the present day.  A modern lawyer may be surprised to learn that, for much of its history, the common law made no effort to establish legal presumptions to deal with the problem of simultaneous death.  In addition, the statutory presumptions that were eventually adopted in England are quite different from their contemporary American counterparts.

Gallanis begins his article by examining the history of the English common law of inheritance.  Under the common law, the problem of simultaneous death was treated as a question of fact that would be decided on a case-by-case basis.  By contrast, civil-law systems such as France adopted specific statutory presumptions that varied according to the age and sex of the decedents.  The civil-law system was eventually adopted in the state of Louisiana, which closely followed the French Code Civil.

In the twentieth century, Gallanis explains, both England and America adopted statutory presumptions.  In England, the change was effected by Parliament in 1922 in response to a suggestion by the Cardiff Law Society.  The Law of Property Act 1922, possibly inspired by the civil law, established a presumption that a younger decedent was presumed to have survived the elder.  Parliament subsequently modified the rule in 1952 for spouses, who were thereafter presumed to have survived each other for the purpose of distributing each spouse’s inheritance.

In America, change came in the form of uniform acts.  The first of these, the 1940 Uniform Simultaneous Death Act, took the position in all cases that Parliament would subsequently apply only to spouses:  each person would be deemed to have survived the other.  The wording of the 1940 Act, however, referred to cases where “there is no sufficient evidence” of survival.  This led to gruesome and undesirable results in cases like  Janus v. Tarasewicz, an estate dispute arising from the Tylenol murders in the early 1980s in which one spouse survived the other by only 2 days.  Because there was “sufficient evidence” of survival, the rule did not apply, even though that meant the property of the first spouse to die would pass through the other’s estate.  In the early 1990s, the Uniform Law Commission promulgated and amended a revised uniform act, which adopted a 120-hour rule in place of the “no sufficient evidence” standard.

Gallanis concludes his article by asking why it took Anglo-American law so long to develop a law of presumptions with regard to simultaneous death.  He suggests two plausible reasons.  First, advances in transportation increased the frequency of accidents, such as train, automobile, and plane wrecks, that would lead to simultaneous death.  Second, the common law’s tendency to delegate factual decisions to lay juries faded away as the lay jury itself declined in importance for civil disputes.  Gallanis views recent legislation in England and the United States as a positive development, by which “the presumption of survivorship was adapted for our modern age, where almost every day brings a newspaper account of another common disaster—and the consequent question whether A survived B.” (P. 200).

Gallanis’s article focuses on the history of simultaneous death in the common law, not the contemporary policies that might make some presumptions better than others.  It is worth noting, however, that advances in medical technology have allowed life to be prolonged artificially following an accident in ways that were not possible in earlier historical periods.  In light of such technology, does a rule that makes the outcome depend on survival by 120 hours adequately take into account the perverse incentives that some heirs and devisees may have?  This is a question that would seem to benefit from further consideration.  While Gallanis is almost certainly correct that the current statutory presumptions are preferable to the blurry law of the past,  that does not mean that the new presumptions are perfect.  Codification does not, and should not, mean ossification.  Inspired by first-rate scholarship like Gallanis’s article, future generations of law reformers will no doubt continue to refine the law’s solutions for the ancient problem of simultaneous death.