Both Spouses Dying Together

It sometimes happens that both spouses die at the same time or within a short time of each other. When spouses die at the same time, under South Australian law there is no presumption (that is, it is not taken as a fact) that the older died first. Where there is no proof of who died first, it may be necessary (for example, where the deceased were joint tenants) to apply to the court for guidance as to the distribution of the estate.

Where a person dies intestate the spouse must survive the deceased by 28 days before he or she can take a share in the estate [Administration and Probate Act 1919 (SA) s 72E]

A testator can cover the possibility of both spouses dying together or within a short time of one another, by making a clause as follows:

I give my whole estate to my wife Grace Smith provided she survives me by a period of twenty-eight days. If my wife fails to survive me by twenty-eight days I give my whole estate in equal shares to my children Peter Smith and Mary Jones.

Both Spouses Dying Together  :  Last Revised: Fri May 30th 2014
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.
Link to sa.gov.au - find what you're looking for

© Legal Services Commission - All Rights Reserved
Funded with the support of the Governments of Australia and South Australia Website by CeRDI