Why the Five-Day Waiting Period Exists
This rule addresses a common tragedy: when family members die close together in time, such as in a car accident or natural disaster. Without a survival requirement, property could pass to an heir who died hours later. That would create a chain of estates, each needing a separate probate process.
A person who does not survive the decedent by at least one hundred twenty hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property and intestate succession, and the decedent's heirs are determined accordingly.
A.R.S. § 14-2104(A)By requiring the heir to survive the decedent by 120 hours, the law simplifies estate administration. If the heir does not make it five full days, the intestate estate passes directly to the next eligible person. This avoids an unnecessary additional probate process.
The Burden of Proof
When the timing of death is uncertain, the law does not presume survival. Instead, it presumes the opposite. Unless clear and convincing evidence proves the heir survived by at least 120 hours, they are treated as having passed first.
If it is not established by clear and convincing evidence that a person who would otherwise be an heir survived the decedent by at least one hundred twenty hours, it is deemed that the individual failed to survive for the required period.
A.R.S. § 14-2104(B)There is one important exception: this rule does not apply if it would cause the entire estate to pass to the state (known as escheat). If every heir would be disqualified, the rule is set aside so the closest relative can still inherit.
For families with an estate plan, this rule is less of a concern. A living trust or will can include its own survival clause. That gives you control over how long an heir must survive before they inherit. It also helps protect separate property and real property from unintended transfers. The surviving spouse and other heirs can benefit from clear planning that removes uncertainty from an already difficult time. Even an informal probate can be affected by the 120-hour rule.