Most couples write their wills assuming one spouse will die first and the other will inherit. Nobody wants to picture both of you dying in the same car accident or hurricane. But when it happens, Florida law decides who inherits, and the default rules can send everything you own to the wrong side of the family.
This guide explains how Florida’s simultaneous death law works in 2026, why Florida has no automatic survival period, how joint property and life insurance are handled, the most common planning mistakes, and the steps couples should take to protect their children and assets.
Quick answer: If you and your spouse die at the same time and there is no evidence of who died first, Florida Statute 732.601 treats each of you as the survivor for your own property. Your assets pass under your will, and your spouse’s assets pass under theirs. But Florida has no built-in survival period. If one spouse is shown to have outlived the other by even a few minutes, the survivor inherits, and the estate can end up with the survivor’s family instead of yours. A survivorship clause in your will or trust prevents this.
What Is the Simultaneous Death Law in Florida?
Florida’s Simultaneous Death Law is found in Section 732.601 of the Florida Probate Code. It sets the default rules for dividing property when two people die and there is not enough evidence to show who died first.
The law only applies when both of these are true:
- Who inherits depends on the order of death.
- There is insufficient evidence that the deaths were not simultaneous.
It also only applies when your documents are silent. If your will, trust, or beneficiary form says something different, your document controls. That is why the wording of your estate plan matters more than the statute.
How Florida Divides Property When Spouses Die Together
| Type of Property | What Florida Law Does | Result |
|---|---|---|
| Assets under your will or trust | Each spouse is treated as surviving the other for their own property | Your property goes to your backup beneficiaries, not your spouse |
| Home or accounts held as tenants by the entirety or joint tenants | Property is split in half | One half passes through each spouse’s estate |
| Life insurance | Proceeds are paid as if the insured survived the beneficiary | Money goes to the contingent beneficiary, or to the insured’s estate if none is named |
| Gifts to beneficiaries in sequence under someone else’s will or trust | Property is split into equal parts | Each part passes as if that beneficiary survived |
These rules only cover true simultaneous deaths. Once there is evidence of who died first, normal inheritance rules apply.
Florida Has No 120-Hour Survival Rule
Many states follow a modern rule that requires a beneficiary to outlive the deceased person by 120 hours (five days) to inherit. Florida never adopted that version of the law. In Florida, the 120-hour rule only applies if your will or trust spells it out.
This matters because most couples do not die at the exact same moment. One spouse often dies at the scene and the other dies hours or days later in the hospital. In that case, the surviving spouse inherits, even if they only lived a short time.
An Example of What Can Go Wrong
James and Maria are married. James has a daughter from his first marriage, and Maria has a son from hers. Their wills leave everything to each other, and then to their own child.
They are in a car accident. James dies at the scene. Maria dies two hours later.
Because Maria survived James, she inherits his estate. When she dies, her will sends everything, including James’s assets, to her son. James’s daughter receives nothing from her father.
If James’s will had required Maria to survive him by 30 days, Maria would have been treated as dying first, and James’s estate would have gone to his daughter as he intended.
Simultaneous Death Clause vs. Survivorship Clause vs. Common Disaster Clause
| Clause | What It Does | When It Helps |
|---|---|---|
| Simultaneous death clause | Decides who is treated as surviving when the order of death cannot be proven | Exact simultaneous deaths |
| Survivorship clause | Requires a beneficiary to outlive you by a set period, such as 120 hours or 30 days | Near-simultaneous deaths, which are far more common |
| Common disaster clause | Covers deaths caused by the same accident or event | Car crashes, plane accidents, hurricanes |
Most Florida estate plans should include a survivorship clause at a minimum. Many attorneys use 30 days instead of 120 hours to cover longer hospital stays after an accident.
Assets Your Will Does Not Control
A survival clause in your will does not apply to assets that pass outside probate. Each of these follows its own form or deed:
| Asset | What Controls It | What to Check |
|---|---|---|
| Life insurance | Beneficiary designation | Contingent beneficiary named |
| 401(k), IRA, pension | Beneficiary designation | Contingent beneficiary named |
| POD bank accounts | Payable on death designation | Backup beneficiary listed |
| TOD brokerage accounts | Transfer on death designation | Backup beneficiary listed |
| Home with a Lady Bird deed | The deed | Contingent remainder beneficiaries named |
If a form names only your spouse and no backup, the asset can fall into probate, which is exactly what most couples want to avoid. As explained in does a will avoid probate in Florida, a will alone never keeps assets out of court.
Common Mistakes That Leave Couples Exposed
- No survival period. Without a survivorship clause, a spouse who outlives you by minutes can inherit everything and pass it to their own heirs.
- No contingent beneficiaries. If your will and beneficiary forms only name your spouse, your assets may pass under Florida intestate succession instead of your wishes.
- No backup personal representative or trustee. If both spouses die and no alternate is named, a Florida court decides who manages your estate.
- No guardian for minor children. If you do not name a guardian, the court chooses who raises your children. Planning for this is covered in estate planning for young families in Florida.
- Leaving money directly to minors. A child cannot receive an inheritance directly. Without a trust, the court may need to set up a guardianship over the money.
- Blended family assumptions. In blended families, a few hours of survival can move an entire estate from one spouse’s children to the other’s. Leaving someone out on purpose also requires the right language, as explained in can you disinherit a spouse or child in Florida.
- Homestead conflicts. Florida limits who can inherit your home if you leave a spouse or minor child. Your survival clauses must work with these rules, which are explained in Florida homestead law and estate planning.
How to Plan for Simultaneous Death in Florida
- Add a survivorship period of 120 hours or 30 days to your will and trust.
- Name contingent beneficiaries in your will, trust, and every beneficiary form.
- Name an alternate personal representative and a successor trustee.
- Designate a guardian for your minor children.
- Set up a trust so children do not inherit a lump sum at 18.
- Confirm how your home, bank accounts, and investments are titled.
- Review your plan after marriage, divorce, a new child, or a move to Florida.
If avoiding probate matters to you, a revocable living trust handles simultaneous death more cleanly than a will alone, as compared in will vs. trust in Florida.
Will With Survival Clauses vs. No Estate Plan
| Will or Trust With Survival Clauses | No Estate Plan | |
|---|---|---|
| Who inherits | The people you name | Florida intestate succession |
| Near-simultaneous deaths | Covered by the survival period | Survivor’s family may inherit everything |
| Guardian for children | Named by you | Chosen by the court |
| Personal representative | Named by you, with a backup | Appointed by the court |
| Children’s inheritance | Held in trust | May require court guardianship |
| Blended family protection | Each family line preserved | High risk of cross inheritance |
At The Schoonover Law Firm, a will package including a power of attorney, healthcare surrogate, and living will typically runs $800 to $1,500 as a flat fee, as explained in flat fee estate planning. Survivorship and contingency planning is included in every package.
Frequently Asked Questions
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What is the simultaneous death law in Florida?
It is Florida Statute 732.601. When two people die and there is not enough evidence to show who died first, each person is treated as the survivor for their own property. It only applies if your will or trust does not say otherwise.
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Does Florida have a 120-hour survival rule?
No. Florida has no automatic survival period. A beneficiary who outlives you by minutes can inherit unless your will or trust requires a longer period.
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What happens if a husband and wife die at the same time without a will in Florida?
Each spouse is treated as surviving the other for their own property. Each estate then passes under Florida intestate succession, usually to children, or to parents or siblings if there are no children.
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What happens to our house if we both die together?
If you own the home as tenants by the entirety and nobody can prove who died first, Florida splits it in half. One half passes through each spouse’s estate.
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Who gets the life insurance if the insured and the beneficiary die together?
The proceeds are paid as if the insured survived the beneficiary. The money goes to the contingent beneficiary, or to the insured’s estate if no contingent beneficiary is named.
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What is a survivorship clause in a will?
It is a provision that requires a beneficiary to outlive you by a set period, often 120 hours or 30 days, to inherit. If they do not, they are treated as having died before you.
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Is a simultaneous death clause the same as a common disaster clause?
Not exactly. A simultaneous death clause applies when the order of death cannot be proven. A common disaster clause covers deaths caused by the same event. Many estate plans include both, along with a survivorship clause.
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Do beneficiary designations follow the survival clause in my will?
No. Life insurance, retirement accounts, and POD or TOD accounts follow their own forms. Each one needs a contingent beneficiary.
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Who takes care of our children if we both die?
The guardian you name in your will or in a preneed guardian designation. If you do not name one, a Florida court decides.
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Can I add a survivorship clause to my existing will?
Yes, through a codicil or a new will. Because your trust and beneficiary forms should match, most people update their full plan at the same time.
Work With a Florida Estate Planning Attorney
No couple wants to plan for dying together, but Florida’s default rules were not written with your family in mind. A few clear provisions in your will, trust, and beneficiary forms make sure your assets reach the people you choose, your children are cared for by the guardian you trust, and your family avoids unnecessary probate. If you are dealing with the loss of two family members at once, the guide on what happens after someone dies in Florida explains the next steps, and our probate services can help you open each estate.
Attorney Yanitza Schoonover drafts wills and revocable living trusts with survivorship clauses, contingent beneficiaries, and guardian designations built in, and reviews existing estate plans to make sure your beneficiary forms and deeds match.
Call (305) 299-7496 or email info@estateplanningattorney.us to schedule a free initial consultation. Phone and Zoom appointments are available Monday through Sunday, 8:00 AM to 9:00 PM.
