IHTM12193 - Succession: Simultaneous deaths (commorientes): General law (Scotland)

Prior to 1 November 2016, S31(1)(b), Succession Act 1964 provided 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 were two exceptions to the general rule.  These were

• where the two people were a married couple  or civil partners (IHTM11032) there is a presumption that neither survived the other so that  neither will qualify as a beneficiary of the other’s estate (S31(1)(a)).  (Although if there is evidence that one person survived the other this would rebut the legal presumptions for simultaneous deaths) and
• If:

-          the older person has left their estate to the younger person in their Will, and then to a third person if that fails, and

-          the younger person has died intestate

• the effect of the survivorship clause is preserved and for the purpose of that provision the older person is presumed to have survived the younger.  The property then passes to the third person to the exclusion of the younger person’s relatives.

The new rules under the Succession (Scotland) Act 2016 repealed S31 Succession Act 1964. 

On or after 1 November 2016, where two people have died simultaneously or in circumstances where it is uncertain who survived whom, neither is to be treated as surviving the other. This applies both on testacy and intestacy and applies for all purposes affecting title or succession to property.