When are you dead for probate purposes?When are you dead?

The Simultaneous Death Act, Texas Estates Code §121.001 (formally Probate Code §47), provides that if you don’t survive the decedent by 120 hours or if you both die in a common disaster, it will be deemed that you predeceased him and vice versa. The same applies for jointly owned property with right of survivorship. When people own property as joint tenants with right of survivorship, the survivor gets all of the property. If the joint owners die within 120 hours of each other, the property is divided between the two estates. One-half going to each owners’ estate because neither survived the other.

A recent question came up in a discussion with some probate lawyers. One had a case where two people were joint owners of some property with right of survivorship. One was declared brain dead but was on life support. The second one died within 120 hours of the first one being declared brain dead. A little over 120 hours after the second one died, the first one was taken off life support and expired.

The question was whether the second one who died within 120 hours of the first one being declared brain dead meant that the jointly owned property would be split between the two estates? Or, does the property go to the first one because he wasn’t taken off of life support, even though he was brain dead, until more than 120 hours after the death of the second one? Does it make any difference if the family of the first one kept him on life support for the purpose of having the property go to his estate and took him off life support only after the 120 hours had passed? There was no consensus answer to these questions. The courts will have to tell us what the answer is.

Problems encountered contesting a will.

This case is working its way through the court system. It is another question that the courts will have to answer. Right now we don’t know the answer but this illustrates some of the problems that attorneys contesting a will have to deal with. Sorting out inheritance disputes like these is what keeps lawyers working late into the night.


The meaning of common disaster was discussed in a 2014 case where a husband shot and killed his wife then shot himself. The wife died immediately but the husband did not die until later that same day. The appeals court had to determine if the husband and wife died in a common disaster since their wills provided for a different disposition of their property if they did. One party took the position that since the husband and wife died at different times, there was no death in a common disaster. Rejecting this argument, the court stated “…it can be said that a common disaster is any situation where the death of two or more people arose out of the same set of circumstances…The shots were fired in one episode, which is a common disaster in spite of the fact that (husband) did not successfully kill himself immediately.” Stephens. However, the Supreme Court disagreed and reversed the court of appeals. See part three of “When Are You Dead…” listed below.

I have written additional articles on “When Are You Dead…” Part two and Part Three.