Definition: Survive

The word “survive” means for one person to live until a later moment than another person. In the context of estate planning, determining whether a person survived another is frequently necessary to determine to whom property from an estate will pass. In most cases, a person who failed to survive a decedent will not inherit from that decedent’s estate.

The question of survival is particularly important when a decedent has died simultaneously or very near the moment when one of the decedent’s beneficiaries or heirs also died.

Consider this scenario:

Tommy dies at some point in his sleep on the evening of July 4th and is discovered on the morning of the 5th. Coincidentally, Johnny, an old friend of Tommy’s, dies in his sleep the same night as Tommy. Johnny was named as a beneficiary in Tommy’s will, which states, “I give ten thousand dollars ($10,000) to Johnny if he survives me. If Johnny he does not survive me, then I give ten thousand dollars ($10,000) to Jim.”

If it cannot be determined who died first, then it is unclear if Johnny met the condition in Tommy’s will that was necessary for him to inherit the money — surviving Tommy. In any case, it is unlikely that Tommy would have wanted Johnny to inherit the money if he wasn’t going to be alive to take it (since it would instead go to Johnny’s estate, to be distributed to Johnny’s beneficiaries or heirs).

To prevent this dilemma, the State of Washington has adopted the Uniform Simultaneous Death Act, which requires that an heir or beneficiary needs to outlive the decedent by a minimum of 120 hours (five days) in order to have legally survived the decedent.¹ (In the above scenario, under the Uniform Simultaneous Death Act Johnny would have been deemed to have failed to survive Tommy, and the money would have gone to Jim instead.)

Although the Uniform Simultaneous Death Act sets the minimum time for survival at 5 days, a testator can define “survive” in his or her will to require a different length of time.²