What is the Commorientes Rule?

The term ‘Commorientes’ stems from the Latin term meaning ‘those who die together’. The Commorientes Rule is an important legal concept that comes into play when two people have died simultaneously and it is not possible to determine who died first. The Rule is governed by section 184 Law of Property Act 1925 which provides that:

For all purposes affecting title to property, where two or more persons have died in circumstances in which it cannot be decided with certainty who died first, they will be presumed to have died in order of seniority – in short, the eldest is presumed to have died first and the youngest is presumed to have died last, and this can have an important effect on how both the estates are distributed. 

A Recent Example of the Commorientes Rule

The above scenario may seem unlikely, however, it occurred in the recent case of Scarle v Scarle (2019) where Mr and Mrs Scarle both died of hypothermia between 4 October 2016 and 9 October 2016. As it was impossible to decide with any certainty who died first, the Commorientes Rule was applied and the presumption was that Mr Scarle, who was aged 79, died before Mrs Scarle who was aged 69. Mr and Mrs Scarle both had children from previous marriages. The application of the rule meant that their jointly owned property and bank account passed automatically by survivorship to Mrs Scarle and her estate was then inherited by her daughter under the terms of Mrs Scarle’s Will. Mr Scarle’s daughter was not entitled to inherit anything. 

If Mr and Mrs Scarle had taken legal advice regarding how they wished their estates to be distributed on their deaths, they might have been advised to sever the beneficial joint tenancy on their property so that it was held as tenants in common. This would have meant that they each owned their own share of the property (50/50) and their share would pass under the terms of their Wills on their death, rather than automatically passing to the survivor as is the case with a beneficial joint tenancy (where both parties own the whole property, not a proportion). Further to their respective Wills, their individual shares would pass on their death, for example to their respective children. 

What are Cohabitees?

It is becoming increasingly common for couples to purchase homes together, and have joint finances, without being married or forming a civil partnership. Unfortunately, the current UK law is not very generous towards cohabitees and they are not recognised under the Intestacy Rules which take effect when someone dies without a Will. The Intestacy Rules apply a strict order of priority in relation to who will inherit in such a situation. The first to inherit under the Intestacy Rules is any surviving spouse or civil partner and, depending on the value of the estate, any children may also be entitled to a part of the estate. If there are children but no spouse or civil partner, then the children will inherit everything. If there are no children (or grandchildren) then any surviving parents will inherit followed by siblings of the whole blood and so on down the chain. This is a simplified version of the rules but the important point to note is that a cohabitee is not entitled to inherit anything on intestacy, regardless of how long the couple have been in a relationship. 

Applying the Commorientes Rule to the above, imagine a scenario where A and B jointly own a property worth £300,000 and a bank account worth £25,000 but they die simultaneously in an accident and it is not possible to ascertain who died first. A is the eldest so it is presumed that A died before B. A’s share of the jointly owned property and bank account briefly pass to B under the survivorship rule and then to B’s parents under the Intestacy Rules. A’s family is not entitled to any share of the property or bank account. 

A scenario similar to the above example could have been avoided following appropriate legal advice and estate planning regarding the options available for joint ownership of property and the preparation of suitable Wills for both A and B to reflect their wishes. 

How Moore Barlow can help

At Moore Barlow we have experienced Private Wealth lawyers able to give advice on wills, trusts and estates to cover all sorts of situations. Please do contact us to set up an appointment.  


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