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Using Empirical Data on the Widowhood Effect to Optimize Simultaneous Death Law and Drafting

Alyssa A. DiRusso

Vol. 53

June 2020

Page 2173

Widowhood is dangerous. When a person loses a spouse, the risk of death and other adverse health consequences surges. This public health phenomenon, coined “the widowhood effect” or “broken heart syndrome” by researchers, has persisted over the course of centuries and has generated robust empirical data. Specifically, most research indicates that the increased risk to health and life is primarily a result of the stress of spousal death rather than common accident. Further, it establishes that although the increased risk of mortality can remain elevated for a lifetime, the peak timeframe of most heightened risk is in the six months following bereavement.

Compare this to the default law of simultaneous death. Most states have probate codes based on one of two versions of the Uniform Simultaneous Death Act. Under the newer version, an heir or beneficiary must survive a decedent for at least 120 hours in order to receive the property. Under the older version of the Act, an heir or beneficiary cannot receive property from a decedent’s estate if there is no sufficient evidence of survival. Although these rules provide some protection against redundant probate (and/or redirection of assets through a spouse’s estate) when a couple perishes by common accident, they map poorly onto the reality of why and when a widow or widower dies. Although there are some jointly encountered catastrophes causing two deaths in short order, the more common scenarios are deaths triggered by stress and grief during bereavement, such as cardiac disease, stroke, and other ailments exacerbated by extreme emotional stressors.

This Article argues that both the default rules of simultaneous death and related legal practice ought to take into account well-established multi-disciplinary research on both the causes and the timing of deaths of spouses. Such an approach requires an expansion of the concept of near-simultaneous death of spouses to be measured not in hours, but in months. Many clients using dispositive documents will be served best by requiring a spouse to survive for six months in order to take, but lawyers can tailor these documents to individual needs. In the absence of governing documents, the default rule should track the wishes of the typical decedent. More research is necessary to confirm the author’s expectation that most spouses would rather property pass through their own estates than their spouse’s if the spouse falls prey to broken heart syndrome within the six months after death. View Full Article

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