(Last Updated On: 2nd April 2020)

The term commorientes derives from Latin commorior, meaning ‘to die together’. It refers to persons dying at the same time, often of the same cause; it also refers to a rule establishing a presumption of survivorship for succession purposes.

In this article, I look at the commorientes rule from a multijurisdictional perspective. I provide a detailed explanation of the rule under English law, followed by an explanation of the rule under Spanish law, with the aim of finding any similarities and differences.

Bear in mind that

  • ‘English’ refers to concepts, language, texts, etc. from England and Wales only, as opposed to other jurisdictions where they may exist or apply.
  • ‘Spanish’ refers to concepts, language, texts, etc. from Spain’s derecho común (subject to the Civil Code) only, and doesn’t include the local laws of specific regions.

The commorientes rule in English law

The commorientes rule is a statutory presumption which deals with the situation where two or more persons leaving property to one another die in circumstances which makes it impossible to know who died first.

It plays a vital role in deciding whether lapse has occurred. Lapse is one of the different ways a gift may fail. According to the doctrine of lapse, a gift to a beneficiary will lapse, if the said beneficiary dies before the testator (two exceptions apply). That is why establishing who died first is key, and this is where commorientes comes into play.

The commorientes rule is established by s184 Law of Property Act 1925, which provides that where

[T]wo or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all purposes affecting title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder. (Emphasis added)

An example to illustrate the rule:

FATHER has made a will leaving GIFT to SON. FATHER and SON go on holiday together and die in the same boat accident. There is no indication as to who died first. As per the commorientes rule in s184 Law of Property Act 1925, SON (the younger) is presumed to have survived FATHER (the elder). As a result, the GIFT which FATHER left to SON by will passes to the estate of SON, and will then be distributed according to SON’s will (or as per intestacy rules, if he left no will).

The doctrine of commorientes also applies where a person dies intestate (without leaving a will):

FATHER and SON go on holiday together and die in the same boat accident. There is no indication as to who died first. FATHER died without making a will. As per the commorientes rule in s184 Law of Property Act 1925, SON (the younger) is presumed to have survived FATHER (the elder), and this will allow SON to inherit, along with any surviving siblings. If SON made a will, both his assets and what he inherited from FATHER will pass on according to his will. If SON made no will, both his assets and what he inherited from FATHER will pass on according to the intestacy rules.

Commorientes and intestate spouses

The statutory presumption does not apply between spouses, if the older spouse dies intestate, in respect of property passing under intestacy rules. This is because s46(2A) of the Administration of Estates Act 1925 establishes that the surviving spouse, in order to inherit under intestacy rules, must survive for at least 28 days. If the surviving spouse does not survive for at least 28, that spouse is presumed to have died before the other spouse.

However, s46(2A) of the Administration of Estates Act 1925 does not apply to joint property. Where spouses died intestate owing property as joint tenants, s184 Law of Property Act 1925 (the commorientes rule) will apply instead, allowing the younger spouse to inherit the joint property by survivorship outside intestacy rules.

Commorientes and inheritance tax

The commorientes rule applies for the purpose of establishing title to property, and the presumption does not apply for inheritance tax purposes. For this tax purpose each deceased person is assumed to have died at the same instant.

Using the same example above:

FATHER and SON go on holiday together and die in the same boat accident. There’s no indication as to who died first. As per the commorientes rule in s184 Law of Property Act 1925, SON (the younger) is presumed to have survived FATHER (the elder). SON will take under FATHER’s will or on FATHER’s intestacy; but inheritance tax on FATHER’s estate is payable (if at all) in respect of FATHER’s death only. On SON’s death, inheritance tax would be payable (if at all) in respect of SON’s property only (and not in respect of property inherited from FATHER).

The commorientes rule in Spanish law

Spanish conmoriencia is regulated by section 33 of the Civil Code, which provides that

If it is uncertain who died first, where two or more people are entitled to inherit from one another, he who claims that one death occurred before the other or others, must prove it. If no evidence is available, then the deaths are presumed to have occurred at the same instant and the transfer of rights from one person to the other or others will not take place. (My own English translation. Emphasis added.)

As you can see, the same legal concept (commorientes) results in a statutory presumption under Spanish law which differs from the one arising in English law. For the commencement of succession to be triggered, the Spanish law requires the person entitled to inherit to be alive; this is because the person entitled to inherit needs to be notified about it and will receive an offer of inheritance for them to accept it or reject it (read more information about the stages of inheriting from a deceased).

Therefore, under Spanish law, a person entitled to receive cannot in any case inherit, if they are not alive at the time of the commencement of succession. That is why Spanish conmoriencia does not allow a dead person to inherit, as English law does.

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IRENE CORCHADO RESMELLA is a Spanish translator based in Oxford. A Chartered Linguist and member of the CIOL, she is also an English-Spanish sworn translator appointed by the Spanish Ministry of Foreign Affairs. Irene specialises in sworn and legal translation (particularly in wills and succession) and is an Affiliate member of STEP. ICR Translations is registered with the Information Commissioner's Office and has professional indemnity insurance.

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