IHTM12193 - Simultaneous deaths (commorientes): general law (Scotland)

S31(1)(b), Succession Act 1964 provides that

‘where two persons have died in circumstances indicating they died simultaneously, or rendering it uncertain which of them survived the other, then for all purposes affecting title or succession to property or claims to legal and prior rights the younger person is presumed to have survived the elder.’

There are two exceptions to the general rule. These are

• where the two persons were husband and wife or civil partners ( IHTM11032) there is a presumption that neither survived the other so that the husband will not qualify as a beneficiary in his wife’s estate and vice versa (S31(1)(a)). (This is subject to actual survivorship that would rebut the legal presumptions for simultaneous deaths.), and
• where the elder person has left a testamentary provision containing a provision in favour of the younger, whom failing a third person, then if the younger person has died intestate the effect of the survivorship clause is preserved and for the purpose of that provision the elder is presumed to have survived the younger and the property then passes to the third person to the exclusion of the younger person’s relatives.