IHTM12197 - Simultaneous deaths (commorientes): death of elder

Because IHTA84/S4 (2) applies only for the purposes of IHTA84/S4 (1) and does not affect the devolution of the estate, spouse or civil partner exemption [ IHTM11031] ( IHTM11032) under IHTA84/S18 is still available in England and Wales on property passing on death from the elder to younger spouse or civil partner.

Example

H by will leaves his estate to his younger wife, W. She by will leaves her estate if H does not survive her to their children. H and W are killed in an accident. The order of their deaths cannot be established so devolution is governed by S184 Law of Property Act. H being the elder is deemed to have died first. His assets therefore pass into W’s estate. W’s estate passes to their children.

The position for IHT is

• on H’s death his estate is spouse or civil partner exempt because H’s estate devolves on W and S4(2) does not prevent S18 applying
• on W’s death S4(2) operates to exclude H’s death estate from W’s death estate for the purposes of the charge under S4(1) on her death. Since H and W are treated as having died at the same instant we tax only W’s own estate in connection with her death.

The result is that H’s estate escapes IHT on both deaths.

It therefore reaches the children, the beneficiaries under W’s will without incurring a tax charge.

In the example above the position would have been different if H had died intestate ( IHTM12101). H’s estate would then have devolved directly on the children so H’s estate would not be spouse or civil partner exempt.

The treatment of simultaneous deaths in Scotland ( IHTM12193) and in Northern Ireland ( IHTM12194) is different and no spouse or civil partner exemption under S18 is available in these circumstances.