120 hours until the consistent treatment of simultaneous death under the California probate code

Abstract

The issue of simultaneous death arises when there is insufficient evidence that two individuals died other than simultaneously. In the case of closely proximate deaths, devolution of the estate depends upon the order of death. The California Probate Code applies standards of proof for survival, which will determine order of death and ultimately whether or not one has the right to inherit property of the decedent. One such standard is set forth in California Probate Code § 6403, which provides that if one dies intestate, the beneficiary must provide clear and convincing evidence of survival by 120 hours. However, this 120 hour standard is not consistent throughout the California Probate Code, and applies only to intestacy and statutory wills. The standard that applies to formally attested or holographic wills is that of clear and convincing evidence, stripped of the benefit of the 120 hour rule. This Article examines the inconsistent adoption of the 120 Hour Rule in the California Probate Code, and proposes a narrowly-tailored legislative solution: California Probate Code § 220 must be amended to replace the “clear and convincing evidence” standard with a 120-hour rule. The same policies that drive the adoption of the 120 hour rule, justify its consistent application through the California Probate Code. In effect, this will create a default 120-hour rule in California, and repair present legislative inconsistencies that prejudice the self-represented or incompetently represented.