Nivel inferencial

F. WARREN TRAVERS, Surrogate.

The above named decedents were husband and wife and both died, apparently almost simultaneously, as the result of injuries sustained in an automobile accident on March 5, 1979. It is now necessary to establish the order of their deaths, in order that distribution of the assets of the estates can be made.

In view of the circumstances of decedents’ deaths, it is necessary to consider whether the New York State Uniform Simultaneous Death Act (EPTL 2-1.6 governs the distribution of the estates’ assets. The statute provides that “where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived . . .” EPTL 2- 1.6(a).

Where two persons die in a common disaster, there is no presumption as to which person survived, and there is no presumption that the deaths were simultaneous. The burden of proof is on the party claiming survivorship to establish it as a fact or by evidence, which fairly warrants an inference of survivorship. (Matter of Spatafora, 35 Misc.2d 128, 229 N.Y.S.2d 601).

Petitioner claims that Paula E. Bausch survived her husband and that his estate should be distributed accordingly. Petitioner has submitted the decedents’ death certificates which have been certified by the County Coroner. The certificates recite that Paula E. Bausch died at 8:00 a. m., and her husband died at 7:55 a. m. The certificates made by the County Coroner state in part: “On the basis of examination and/or investigation, in my opinion death occurred at the time . . . stated.”

Public Health Law, Section 4103(3), provides in part that “a . . . death certificate . . . shall be prima facie evidence in all courts and places of the facts therein stated.” There has been some question as to whether a death certificate is admissible to prove any facts other than the fact of death. (See Fisch

103

on New York Evidence, Section 956, and Matter of Esther T., 86 Misc.2d 452, 382 N.Y.S.2d 916, ,

and cases cited therein.)

This court is persuaded by the reasoning of Surrogate Bennet as expressed In Matter of Esther T., (supra) and holds that the death certificates offered by petitioner are admissible in evidence together with the collateral facts stated therein and not solely for the proof of death.

The court is satisfied that EPTL 2-1.6 does not apply in the case now before the court.

The death certificates are sufficient proof of the fact that John A. Bausch predeceased his wife by approximately five minutes.

The estate of John A. Bausch shall be distributed as though his wife survived, and Paul E. Bausch’s estate shall be distributed as though her husband predeceased her.

Problems

1. Based upon the reasoning in the Bausch case, is it clear how much evidence is necessary to reach the “sufficient evidence” requirement? Does this case provide guidance for attorneys in the jurisdiction? The sufficient evidence only has to prove that one person survived for an instant. In the Bausch case, the wife only survived her husband for five minutes. That small amount of time changed the distribution of the estates and potentially disadvantaged the husband’s heirs.

2. If order of death can be determined, the USDA is not applicable. The statute also does not apply if the decedent leaves a will containing survival language. In cases where the statute is applied, the statute results in an even distribution of the parties’ estate. Thus, if H and W die in a common disaster and it is not possible to prove who died first, half of the estate goes through H and half goes through W.

3. Collin and Raven, husband and wife, were killed when their boat exploded. Their bodies were not found until ten days later. Doctors concluded that they died from hypothermia when they were thrown from the boat into the frigid lake. A Coast Guard officer testified that, when they were discovered, Collin was wearing a t-shirt and a pair of biker shorts and Raven was wearing a long- sleeved shirt and a pair of jeans. Is that sufficient evidence to conclude that Raven survived Collin for an instant of time?

4. On April 12, 2000, Parker and Anita, husband and wife, were hiking. Parker tripped and fell down a small hill. While trying to save Parker, Anita slipped and hit her head. Two hikers found the couple and they were rushed to a nearby hospital. When Parker and Anita arrived at the emergency room, they were both in serious condition. At the hospital, Anita’s brain started swelling and she was rushed to the operating room. Due to an existing condition, Parker started having heart problems and he was also taken to the operating room. Following the operations, Parker and Anita were both placed on life support. A review of his medical records revealed that Parker had a living will stating that he did not want to remain on life support for more than two days. Anita’s medical records showed that she had an advanced health care directive that gave her sister, Trina, the right to make her medical decisions. Thus, the hospital decided to keep Anita on life support until Trina could arrive. Trina was out of the country, so she did not get to the hospital until April 16, 2000. Parker

104

was taken off of life support on April 14, 2000 and pronounced dead. Trina gave the hospital permission to remove Anita from last support on April 17, 2000. Was there sufficient evidence that Anita survived Parker?