Bodies of evidence- How is inheritance divided when a couple die at the same time?
It is quite common for a married couple to both have children from previous relationships. If both die around the same time, whose estate benefits from the other? What if it is difficult to ascertain who died first?
The Commorientes Rule is found in Section 184 of The Law of Property Act 1925 and deems that the elder spouse died first. This means their share goes to the estate of the younger spouse by survivorship and so the younger spouse’s family will benefit at the expense of the family of the elder spouse.
Over and above the double tragedy for both families, the Commorientes Rule and its effects can lead to disputes as happened in the case of The Estate of James Scarle v. The Estate of Marjory Scarle  EWHC 2224 Ch. This a case that the reader may feel raises more than just the legal issues discussed in this note.
Both spouses died of hypothermia in 2016 and their bodies were found a week later in their home.
As was referred to in that case, what if one party can show precisely which spouse died first as a matter of fact? Could that displace the Commorientes Rule? Before this case, it had not been satisfactorily established as to what standard of proof was required in order for the application to be successful. The judge decided that the correct standard of proof to be applied was the civil one, namely the balance of probabilities. The burden of proof was on the party trying to show that the order of death could be ascertained through evidence. Such evidence had to be conclusive.
The case involved detailed, and no doubt costly, expert evidence about the comparative rates of decomposition of the bodies in the context of the specific temperature variations and conditions in the respective parts of the house where each body was found. As it turned out, the Judge was not persuaded by the evidence that there was certainty as to the order of death and so the effect of the Commorientes Rule prevailed and it was deemed that the elder spouse died first.
On a note of caution, what is an interesting case for lawyers can often be very emotionally draining and very expensive for the parties concerned. Most of a very modest estate had been used up in legal fees. It just goes to show that however unusual the circumstances and area of law involved, it is often such mundane but important factors such as the cost of defending the case that should be at the very top of the agenda.