“Nothing counts as much as blood. The rest are just strangers.”
– Gene Hackman in Wyatt Earp

1. OVERVIEW

Gene Hackman is a household name. Over five decades, he starred in legendary movies spanning nearly every film genre. Earlier this year, the Oscar-winning actor, age 95, and his wife, Betsy Arakawa[1], age 64, were found dead inside their New Mexico home. The scene could have been lifted from one of Hackman’s Hollywood films—Hackman was found in their mudroom and Arakawa was found in the bathroom, surrounded by open prescription bottles. Autopsies showed that Arakawa died from hantavirus pulmonary syndrome,[2] while it is believed that Hackman died about a week later from heart disease and complications from Alzheimer’s. While the mystery surrounding their tragic deaths was resolved quickly, the administration of their estates was just getting started. Hackman’s will bequeathed his entire estate to Arakawa, but was silent on survivorship, meaning New Mexico’s 120-hour default survival rule would determine whether Arakawa’s estate would inherit any of his millions. Arakawa’s will left all her assets to Hackman, but included a 90-day survivorship clause, resulting in her estate supporting charitable causes instead of going to Hackman’s estate. Hackman named a trust as his contingent beneficiary, the terms of which are private. Reportedly, his children have hired attorneys, and given the unusual circumstances, incongruent estate provisions, and amount of wealth at issue, there may be a long road ahead in determining who will inherit Hackman’s multimillion-dollar fortune.

Celebrity deaths serve as a reminder of estate planning principles that may apply to ordinary individuals and situations. Hackman’s estate plan underscores how an insignificant clause—or the absence of one—can dramatically alter the distribution of one’s assets at death. A simple survivorship provision could have provided clarity. Instead, Hackman’s will triggered application of default rules under the Uniform Simultaneous Death Act (the “USDA”), opening the door to potential uncertainty, litigation, and unintended outcomes. Estate planners must be well-versed in the default rules and clearly communicate their implications to clients. If the default rules are unsatisfactory, an estate plan’s governing documents (typically a will and/or trust) may include survivorship provisions that would instead apply. This article will (i) review the genesis of the USDA and its modern statutory iteration, (ii) examine case studies on how survivorship provisions apply in several uncommon, but not unthinkable, scenarios, and (iii) outline drafting considerations for the estate planner.

2. THE UNIFORM SIMULTANEOUS DEATH ACT

The USDA is a model law that provides guidance for distributing property when two or more individuals die in close succession or under circumstances where it is not possible to determine who died first.[3] Nearly every state has enacted some iteration of the USDA, either in its original form or the revised version, or as part of its Uniform Probate Code (“UPC”). Some states differ in how they apply the law, including variations in the timeframes used, the evidentiary standards required to establish the order of death, and the treatment of different types of property.

2.1. GENESIS OF THE UNIFORM SIMULANEOUS DEATH ACT

Prior to the USDA, common law dictated that the surviving spouse inherits everything from the predeceased spouse, even if they survived by mere seconds. This led to litigation, with each side attempting to prove survivorship. For example, in New York, litigation ensued after a husband and wife perished in a fiery airplane crash.[4] The postmortem report found a small amount of carbon monoxide in the wife’s blood, but none in the husbands. According to physicians, the presence of carbon could only be evidenced by the fact that the wife took at least one smoke-filled breath after the husband passed away. As the court noted, survivorship is established even if the interval is “less than a second.”[5] Interestingly, the testamentary dispositions of both the wife and husband’s wills were identical. Everything was left to the spouse conditioned on survival. This highlights another issue under common law. The husband’s estate had to be administered twice—first to his wife, then to their mutual beneficiaries, thereby generating unnecessary administrative expenses.

The USDA was first promulgated in 1940 and provided that when there is a lack of sufficient evidence that two individuals died other than simultaneously, each individual’s property is to be distributed as if they survived the other. Due to continued litigation[6], the USDA was revised in 1991, and amended in 1993, to expand the narrow application of the original Act. The current version provides a straightforward solution by establishing a minimum survivorship period. In short, an individual is deemed to have predeceased another when it cannot be established, by clear and convincing evidence, that they survived the other by 120 hours. Had In re Estate of Bucci, referenced above, been decided under the USDA, both the wife and husband would have been considered predeceased. Therefore, no property would pass between them; instead, their respective estates would have been administered to their contingent beneficiaries per the terms of their respective wills. The advantages of this approach are that each individual’s property passes to that individual’s intended beneficiaries, and duplicative administrative costs are avoided because property does not pass from one estate to another estate. The USDA’s approach would be especially beneficial in states that charge a probate tax based on the value of an estate’s assets.

Why did the drafters of the revised USDA choose to implement a survivorship period of 120 hours? As one of the primary stated goals of revising the USDA was to alleviate litigation and uncertainty, a specific and measurable time period was needed. The UPC, which at the time had been adopted in numerous states, contained a 120-hour survival requirement as a condition precedent to taking by intestate succession or under a will.[7]  It made sense that the revised USDA, that was implementing seemingly parallel, and in some instances, superfluous provisions to the UPC’s survival requirement, should apply the same time frame.

2.2. THE UNIFORM SIMULANEOUS DEATH ACT PROVISIONS

The revised USDA expanded the 120-hour survivorship period and the application of the USDA’s rules across numerous categories of property and situations.

First, and most broadly, if the devolution of property or donative provision in a governing instrument[8] depends on one individual surviving another, and it cannot be established by clear and convincing evidence that the individual survived by 120 hours, such individual will be considered predeceased. This includes statutory rights such as the right of a surviving spouse to make an elective share claim, augmented estate share, or take family allowances. The surviving spouse must survive by at least 120 hours to be eligible to claim such rights. It also applies to assets passing via beneficiary designation or “payable on death” or “transfer on death” designations, such as a retirement account, life insurance or annuity policy, pension, or similar benefit plan. Importantly, if application of the USDA results in an intestate estate escheating to the state, it shall not be applied.

The revised USDA recognizes that many people own property jointly with rights of survivorship, such as bank or investment accounts, or real property, and seeks to apply a similar construct in addressing such categories of assets. [9]  For jointly-owned accounts and property, if it cannot be established by clear and convincing evidence that one of two co-owners has survived the other by 120 hours, the property will pass as if each individual had survived the other by 120 hours.

The drafters of the revised USDA anticipated the potential uncertainty that the 120-hour rule could sow when applied outside of a probate estate, particularly for financial institutions seeking to pay out life insurance policies or jointly owned accounts that pass via beneficiary designation or operation of law. The law provides protections for payors, bona fide purchasers, and other third parties for transferring property or making a payment to an individual designated in a governing instrument unless it has received written notice[10] alleging that the USDA could apply and change the disposition.

The revised USDA also addresses the rules relating to a determination of death and status. A clear and convincing evidence standard of proof is imposed throughout the Act to reduce litigation and to resolve close cases in favor of non-survival.[11]  Date and time of death can be established via prima facie evidence, most typically seen as a certified or authenticated copy of an official death certificate or report of a governmental agency.  If prima facie evidence is not available, the date and time of death can be established by clear and convincing evidence, including circumstantial evidence if appropriate. Direct evidence may include eyewitness accounts, observable vital signs such as breathing or pulse, or audible sounds indicating life.[12] Circumstantial evidence can include medical and forensic findings such as postmortem examination results, levels of decomposition, rigor or livor mortis, presence of carbon monoxide in the blood, severity and location of injuries, and physical evidence.[13]  Courts across jurisdictions consistently hold that there is no legal presumption of survivorship based solely on factors such as age, sex, physical condition, or health status, because these characteristics are deemed too speculative to establish the order or timing of death, even if one person appears physically stronger or younger than the other. [14]  In the absence of clear and convincing evidence, a court will conclude that the order and timing of death is unascertainable and treat the deaths as simultaneous.

2.3. EXCEPTIONS TO THE UNIFORM SIMULANEOUS DEATH ACT

There are several notable exceptions to the default 120-hour rule found in the USDA. Most important is that individuals can override the rule by adding language to their governing instruments (in most cases, a will and/or trust) that explicitly covers simultaneous or close-in-time deaths. However, mere words in the instrument requiring “survivorship” will not be enough to eliminate or modify the default 120-hour survivorship period.[15] Additionally, the 120-hour requirement is inapplicable if, applied to multiple governing documents, the result is an unintended failure or duplication of a disposition. Such a result could be seen where a husband and wife executed mutual wills with reciprocal provisions, leaving a significant cash bequest to charity at the death of the surviving spouse with the residue to their children.  If husband and wife die within 120 hours of each other, under the USDA each is deemed to have predecease the other, and each spouse’s estate plan is administered accordingly. The charitable bequest would be unintentionally duplicated but for USDA’s considerate approach; instead, the charity will receive only the singular dollar amount and not double, preserving more of the estates for the children as their parents intended.

3. CASE STUDIES

The USDA’s survivorship requirements provide a clear framework for analyzing simultaneous or successive deaths. This clarity helps avoid unnecessary litigation, duplicative administrative expenses, and delay. However, in developing the USDA, its drafters had to make assumptions about how individuals would want their assets distributed. While those presumptions may align with some estate plans, they can lead to unintended and undesirable results in others. The following are case studies demonstrating how the USDA can have varying outcomes, depending on the facts.

3.1. JOINT ACCOUNTS PASSING VIA INTESTACY

Husband Harold and wife Wilhelmina chose to emigrate from the U.S. and relocated to wife’s country of origin where they lived for over 60 years before their deaths. The only asset remaining in the U.S. was a jointly owned bank account in a state with the revised USDA. Harold and Wilhelmina passed away under circumstances where Harold predeceased Wilhelmina, but it was not possible to determine with clear and convincing evidence whether she survived him by 120 hours. Under the USDA each is deemed to have predeceased the other, and the joint account will pass one-half to Wilhelmina’s estate and one-half to the Harold’s estate, leading to expensive and prolonged estate administrations in the U.S. that should have been at least partially avoided. The couple died intestate, so their respective heirs at law will each receive half of the joint account. Unfortunately, Harold is estranged from his U.S. family, and Wilhelmina’s family in their home country will receive only one-half of the assets despite having a much closer relationship to the couple. The administrator for Harold’s estate will need to conduct an expensive heir search to find his rightful heir(s). Such an outcome is unfortunate given the estrangement from Harold’s family and close personal ties with Wilhelmina’s family. Due to the applicability of the USDA to the joint account, and his lack of an estate plan, Harold’s estate will pass to heir(s) he has never met.

3.2. BLENDED FAMILIES

The Hackman estate is an example of the special estate planning considerations needed for blended families. As noted, Arakawa is Hackman’s second wife. The two married in 1991 and they did not have any children together. Hackman has three adult children from his previous marriage. Both Hackman and Arakawa structured their estate plans as most spouses do—they left everything to each other. However, as with many blended families, their contingent beneficiaries differed. In such cases, it is critical to understand how the state’s default laws would apply to rapid succession or simultaneous deaths, and to draft survivorship presumptions and minimum survivorship periods that align with the client’s goals. Because Hackman and Arakawa died within a short interval of one another, mere hours of difference will profoundly impact who ultimately benefits from their estates.

Arakawa included a provision in her will that if Hackman did not survive her by 90 days, her assets would pass to charity. Hackman’s will was silent on survivorship, thereby invoking the USDA. Medical examiners determined that Hackman died 144 hours after Arakawa, meaning Arakawa was considered to have predeceased him. However, what if the order of deaths had been different, in actuality or by application of the default law? If medical examiners had determined that Hackman died a mere 25 hours earlier (119 hours after Arakawa), Hackman would have been characterized as having predeceased Arakawa under the USDA. Hackman’s entire estate would have passed to Arakawa because his will did not contain a minimum survivorship requirement and the 120-hour rule applied. Arakawa’s estate provisions would govern, leaving all assets to a charitable trust. If Hackman had intended to benefit his children if Arakawa predeceased him, they would certainly be unhappy with this result.

3.3. NON-SPOUSE SCENARIO

It may appear the USDA applies only to spouses, but that is not the case. The USDA applies whenever two individuals die at the same time or within a short period of time of each other. Consider two siblings who are traveling together. Brother Bruce is single, and sister Sally is married (neither have children of their own). Bruce is a successful entrepreneur who has had an estate plan in place since his first liquidity event. Bruce’s will leaves everything to Sally but it is silent as to any survivorship period. Bruce names his parents as the alternative beneficiary if Sally does not survive Bruce. Sally and her husband have had estate planning on their to-do list but never got around to making wills. Bruce and Sally die because of a car accident, with Bruce passing away on impact and Sally dies at the hospital shortly thereafter. In a jurisdiction that has not adopted the revised USDA, Bruce’s estate will pass to Sally. Sally’s estate, now including Bruce’s significant assets, will all pass via intestacy to Sally’s husband. Bruce and Sally’s parents will receive nothing. If Bruce lived in a revised USDA state[16], or if he included a survivorship period in his will, Sally would be treated as having predeceased Bruce. Bruce’s estate plan would be carried out according to his wishes and Bruce’s parents would receive his wealth as originally intended.

4. DRAFTING CONSIDERATIONS

Explicitly planning in governing documents for simultaneous or successive death scenarios can alleviate unintended consequences. Any competently drafted estate plan will account for the possibility that one or more of the intended beneficiaries may predecease the testator. A thoroughly drafted estate plan will contain provisions addressing survivorship rules that either mirror the applicable state law or override the default law by outlining a clear and easy to administer test. While survivorship provisions are typically boilerplate, and often overlooked, a better approach is to carefully consider the client’s specific assets and family structure and deliberately draft survivorship provisions that reflect an appropriate outcome if an unexpected scenario comes to fruition.

One consideration when drafting is whether it would be prudent to override the default 120-hour rule. This can be done by establishing a different timeframe, such as 30, 60, or 90 days, 6 or 9 months, or any other interval. By stretching the survivorship period, the provision captures not only non-simultaneous deaths, but also deaths that occur within a short period of one another. This can alleviate the administrative burden of putting the same assets through probate twice, but more importantly ensures that the original owner’s intended beneficiaries receive the property rather than being subject to the estate plan of the beneficiary who died in close succession. A minimum survivorship clause in a will could read as follows: “A beneficiary shall be deemed to have survived me only if the beneficiary survives me by at least [120 hours, 30 days, 90 days, 6 months]. A beneficiary shall be deemed to be “then living” only if the beneficiary is living at least [120 hours, 30 days, 90 days, 6 months] after the referenced date or event.”

It is important to consider the possible tax implications of extending the survivorship period. Mandating a survivorship period, or imposing a survivorship presumption, may impact the applicability of certain exemptions or elections. For example, an estate plan may direct that the deceased spouse’s assets be distributed to a marital trust for the surviving spouse with the intention of making a qualified terminable interest property election (a “QTIP Trust”). It is not uncommon, particularly if a second marriage, to condition a bequest to a surviving spouse (or QTIP Trust for the spouse’s benefit) on the spouse’s survival for a certain period. For a QTIP Trust bequest, a survivorship period exceeding 6 months will disqualify the QTIP Trust from the marital deduction from estate tax.[17] A sample provision in a will or trust may read as follows: “If my wife fails to survive me by a period of six (6) months, then for purposes of this will, she shall be deemed to have predeceased me. However, in the event my wife survives me by at least six-months, my Executor shall distribute the rest, remainder and residue of my estate to the Marital Trust for her benefit.”

A survivorship period may also have Generation Skipping Transfer tax (the “GST tax”) implications. There is a special exception to the GST tax called the predeceased parent rule.[18]  If the parent of a grandchild a bequest to whom would otherwise be a direct skip (and therefore subject to the GST tax) does not survive the transferor by a period not to exceed 90 days, the parents will be considered predeceased. The result is that the grandchild is “moved up” a generation level and is treated as a child for GST tax purposes, and a gift to the grandchild is no longer a direct skip. Drafting an estate plan to incorporate a 90-day survivorship requirement for a gift to a child thereby would assure that the child’s close-in-time death qualifies for the deceased parent exception and any contingent gift to grandchildren as a result avoids GST tax. If instead a longer survivorship period is included (e.g., 6 months as described above for a surviving spouse), the drop down to the grandchild generation could trigger immediate GST tax consequences for the decedent’s estate. That GST tax impact could have been avoided by sending the assets to the post-deceased child’s estate.

On the other hand, if a shorter survivorship period is chosen there is no GST tax effect but consider how the client would want his assets to pass in a scenario when his child died soon after his death. Is the 120-hour default rule under the USDA appropriate? A wider window of survival may be preferable. Consider a scenario where Parent Paul dies in a revised USDA state leaving all his assets to his Child Charlie. If Charlie does not survive Paul, Paul’s estate plan directs his assets to trusts for his grandchildren to be managed by a professional trustee because Paul thinks that Charlie’s wife is imprudent with managing money. Paul’s will does not contain a minimum survivorship period, so the 120-hour rule applies. Charlie dies a mere 15 days after Paul, so Charlie inherits Paul’s entire estate. Charlie’s estate plan governs his inheritance from Paul, but he did not have time to update his plan after his father’s passing to reflect his newfound wealth. Charlie’s estate plan leaves everything to his wife. Now Paul’s assets are solely owned by Charlie’s wife. Paul’s grandchildren receive nothing from their grandfather. If Paul’s estate plan had included a longer survivorship period (e.g., 90 days), his intended beneficiaries would have received their trust rather than being diverted to Paul’s daughter-in-law.

Another option is to establish an explicit presumption of who predeceased whom in a simultaneous death scenario. Clients can “choose” the order of deaths that will result in the most efficient tax outcome for their estate by making use of any available estate or GST tax exemptions. A presumption clause will dictate that the poorer spouse should be treated as the survivor so that wealthier spouse can obtain the marital deduction from estate tax and get the benefit of the poorer spouse’s tax exemption amounts. Presumption clauses are less critical now that there is portability of federal estate tax exemptions, but it continues to be relevant for GST tax and state-level estate tax planning when portability is not available. A simultaneous death presumption clause could read as follows: “In the event that spouse and I die under circumstances whether there is not clear and convincing evidence to determine that we died otherwise than simultaneously, it shall be conclusively presumed for all purposes of this instrument that [I survived spouse] or [spouse survived me].”  A presumption clause must be coordinated between both spouses’ documents to avoid conflicting provisions or ambiguity.

5. CONCLUSION

Life can be unpredictable. Estate plans must account for numerous contingencies, including the possibility of simultaneous or near-simultaneous deaths, especially among spouses or close family members. The case studies discussed herein are  dramatic examples of how a simple and often overlooked provisions in a will or trust can shift the course of an entire estate plan. While the USDA offers a safety net, it is a default law and a limited tool—framed under general presumptions that do not account for individual wishes or family dynamics. By understanding the USDA, recognizing its limitations, and proactively tailoring the survivorship clauses in clients’ estate planning documents to meet their needs and wishes, practitioners can safeguard their clients’ plans against the unpredictable. No matter the timing of one’s final moments, thoughtful drafting ensures that legacies are preserved, disputes are avoided, and assets pass as intended.

Sarah J. Brownlow is a partner at Virginia Estate & Trust Law, PLC, in Richmond, Virginia.  She advises individuals and families on estate and tax planning matters and advises fiduciaries on estate and trust administration matters.  She has significant experience developing tax-efficient estate and trust strategies for clients in Virginia and New York, including those with international ties.  Sarah lives in Richmond, Virginia with her husband and their energetic and joyful young daughters and dogs.

The author thanks Micah Talabiska, University of Richmond School of Law (J.D. expected May 2026), for her valuable contributions to this article.

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[1] Betsy Arakawa is Gene Hackman’s second wife. Hackman has three adult children from a prior marriage.

[2] Hantavirus pulmonary syndrome is a rare, rodent-borne disease that can be transmitted from animals to humans.

[3] UNIF. SIMUL. DEATH ACT (“USDA”) (Uniform Law Commission, 1993); e.g., Uniform Simultaneous Death Act, Virginia Code § 64.2-2200 et seq.

[4] In re Estate of Bucci, 57 Misc.2d 1001 (N.Y. Surr. Ct. 1968).

[5] In re Estate of Bucci, 57 Misc.2d at 1002–03.

[6] See id.; Janus v. Tarasewicz, 482 N.E.2d 418 (Ill. App. Ct. 1985).

[7] UNIF. PROB. CODE §§ 1-107, 2-104, 2-702 (Uniform Law Commission, 1991).

[8] Section 1 of the USDA provides definitions for pertinent terms. One such term is governing instrument, which is defined to cover a range of documents, including a “deed, will, trust, insurance or annuity policy, account with POD designation, pension, profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of any similar type.”

[9] Co-owners with rights of survivorship include “joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitles one or more to the whole of the property or account on the death of the other or others.” USDA, Section 1.

[10] The requirements for written notice are listed in USDA, Section 7, Subsection 2.

[11] USDA, Prefatory Note (1993).

[12] Trenkamp v. Eckel (in Re Estate of Parisi), 328 Ill. App. 3d 75, 80 (Feb. 7, 2002).

[13] Id. at 81; In re Estate of Bucci, 57 Misc.2d 1001; In re Estate of Di Bella, 100 N.Y.S.2d 763, 854–56 (N.Y. Surr. Ct. 1950); In re Estate of Cates, 2021 Okla. Civ. App. LEXIS 40, *P13–16, 18 (2021).

[14] In re Estate of Moran, 77 Ill. 2d 147, 149–50 (1979); Trenkamp v. Eckel (in Re Estate of Parisi), 328 Ill. App. 3d at 80; In re Estate of Di Bella, 100 N.Y.S.2d at 851; Petition of Smith, 361 Mass. 733, 736 (1972).

[15] USDA, Section 6, Subsection 2 Comment. For example, a trust provides that the net income is to be paid to A for life, remainder in corpus to B if B survives A, the 120-hour requirement of survival would still apply. B would have to survive A by 120 hours. If, however, the trust expressly stated that B need not survive A by any specified period, that language would negate the 120-hour requirement of survival. Additionally, if a will devises property “to A if A survives me by 30 days,” the express 30-day requirement of survival overrides the 120-hour survival period provided by this Act.

[16] Or a state having enacted §§ 1-107, 2-104, 2-702 of the Uniform Probate Code or similar provisions.

[17] 26 U.S. Code § 2056(b)(3).

[18] 26 U.S. Code § 2651(e).