If You Die on a Cruise (Or Anywhere Outside California), Your Estate Plan May Not Follow You

By Anthony Jones, J.D. - The Berhe Law Firm, APC

Consider this: A 67-year-old Rancho Cucamonga resident - a retired engineer with a carefully drafted California revocable living trust, a pour-over will, and a timeshare in Cabo San Lucas he bought a decade ago as a retirement gift to himself - boards a Carnival ship in Long Beach. Seven days into the voyage, somewhere off the coast of Baja California, he suffers a fatal cardiac event. He is 14 nautical miles from shore.

His family believes the trust handles everything. It does not. What follows is a Florida federal maritime lawsuit governed by a body of law his California estate attorney never mentioned, a Mexican ancillary probate proceeding for the timeshare that will take years and cost money nobody budgeted, and a California probate proceeding for assets the trust failed to capture. The repatriation of his remains alone costs $18,000. His travel insurance - the comprehensive plan he paid $400 for - explicitly excludes repatriation of remains.

This is not a hypothetical designed to frighten you. This is the intersection of maritime law, private international law, and domestic estate planning that claims families every year. The purpose of this article is to map that intersection with precision, so that the people who find themselves searching for answers at 2 AM have something better than generic content to work with.

The Death on the High Seas Act: What It Is, and Why It Matters

When a person dies due to a wrongful act, neglect, or default occurring on the high seas - defined as waters beyond 3 nautical miles from the shore of the United States - the governing federal statute is the Death on the High Seas Act (DOHSA), codified at 46 U.S.C. §§ 30301-30308. Congress first enacted DOHSA in 1920, and it remains the controlling federal law for deaths in international waters.

DOHSA creates a cause of action in admiralty. It allows the personal representative of the deceased to bring a claim against the responsible party for the exclusive benefit of the decedent's spouse, parent, child, or dependent relative. The critical limitation - and one that consistently surprises families - is what DOHSA does not permit: recovery for nonpecuniary damages. Under the statute, recoverable damages are strictly limited to pecuniary losses: the financial support the deceased would have provided, lost income, and funeral expenses. There is no recovery for loss of companionship, grief, or the emotional suffering of surviving family members. California's own wrongful death statute is considerably more generous on this point, but California's wrongful death statute does not apply once you pass beyond the 3-nautical-mile threshold.

Congress did create one exception. Under 46 U.S.C. § 30307, if the death results from a commercial aviation accident occurring on the high seas beyond 12 nautical miles from shore, additional nonpecuniary damages are recoverable. That exception does not extend to cruise ship deaths. If your loved one died in international waters aboard a vessel, pecuniary damages are the ceiling.

The statute of limitations under DOHSA is three years from the date of death. That timeline sounds generous until you understand the logistical obstacles facing a family managing grief, international remains repatriation, and competing probate proceedings simultaneously.

The Contract You Signed Without Reading: Cruise Line Forum Selection

Every passenger who books a cruise through a major carrier agrees to a contract of adhesion - a standardized form contract that is non-negotiable and typically runs dozens of pages. Buried in these contracts is a forum selection clause designating a specific court as the mandatory venue for any dispute arising from the voyage. For Carnival Corporation and most of its brands, that forum is Miami-Dade County, Florida.

The enforceability of these clauses was settled by the Supreme Court of the United States in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991). In that case, a Washington State couple purchased cruise tickets, and Mrs. Shute was injured when she slipped on a deck mat while the ship was in international waters off the Mexican coast. The Shutes filed suit in Washington federal court. Carnival moved to dismiss based on the forum selection clause in the ticket requiring all disputes to be heard in Florida. The Supreme Court enforced the clause, holding that non-negotiated forum selection clauses in passenger contracts are not per se unenforceable, and that Carnival had legitimate business reasons - central management of all litigation, consistent application of maritime law - for choosing Florida as its designated forum.

The practical consequence for a California family is stark. Your loved one died off Mexico, you live in Los Angeles, and you must file and prosecute a maritime wrongful death action in Florida under federal admiralty jurisdiction. You need a maritime attorney in Florida who understands DOHSA's damage limitations. You are not in California state court. You are not applying California wrongful death law. You are in a specialized federal admiralty forum, pursuing exclusively pecuniary damages, governed by a federal statute that is now over a century old.

What Happens to the Body: Repatriation Costs Nobody Plans For

When a U.S. citizen dies abroad or in international waters, the U.S. government does not pay for the return of remains. The State Department's Overseas Citizen Services will assist with logistics and information, but the financial responsibility falls entirely on the family. Repatriation of remains from an international location - including the preparation of the body according to destination requirements, the specialized air cargo container, embalming, customs documentation, and ground transport on both ends - typically costs between $10,000 and $25,000, with costs varying significantly based on location, distance, and the specific requirements of each country.

Most standard travel insurance policies cover medical evacuation for living policyholders but exclude or severely limit repatriation of remains. This is one of the most consequential coverage gaps in personal financial planning. The specific rider a traveler needs is called a "return of remains" benefit or a repatriation of mortal remains endorsement - and it must be explicitly confirmed in the policy language before departure. Travelers who are serious about this coverage should look for policies or travel membership programs that include this benefit by default, rather than assuming their standard travel protection handles it.

When a death occurs on a cruise ship, the cruise line will cooperate with logistics and has established protocols for these events. However, the line does not bear the financial cost. In the scenario that opened this article, the family's $18,000 repatriation expense came entirely out of pocket - an expense that could have been avoided for roughly $229 per year under certain travel membership programs that include repatriation of remains as a base benefit.

Which Law Governs Your Will When You Die Abroad

The choice-of-law rules for succession are among the oldest and most consistently applied in private international law, and they create immediate complications for California residents with assets outside the state.

The fundamental split is between real property and personal property. For real property - land, structures, and interests in real property - the governing rule is lex situs: the law of the jurisdiction where the property is physically located controls its succession. This rule has been recognized in American conflicts of laws doctrine since the nineteenth century and is reflected in both the First and Second Restatement of Conflict of Laws. If you own a condo in Cancun or a villa in Florence, the succession of that property is governed by Mexican law or Italian law respectively - not California law, regardless of what your California will or trust says.

For personal property - financial accounts, investments, personal possessions, and most intangible assets - the controlling rule is the law of the decedent's domicile at the time of death. For a California domiciliary, this means California law governs the distribution of personal property regardless of where those assets are physically located at death.

The practical implication: a California resident who dies owning a Mexican timeshare has a California-law estate plan that controls her U.S. assets, and a Mexican-law succession problem for the Cabo timeshare - regardless of the careful language in her revocable trust back home.

Ancillary Probate: The Second Proceeding Nobody Planned For

Ancillary probate is a secondary probate proceeding opened in a jurisdiction where a decedent owned real property but was not domiciled. It is not a quirk or edge case - it is a structural requirement of the lex situs rule. When a California resident dies owning real property in another country, the California probate or trust administration proceeding does not reach that foreign property. A separate proceeding must be initiated in the foreign jurisdiction according to that jurisdiction's own rules, timeline, and cost structure.

In Mexico, succession of real property owned by a foreign national is governed by Mexican civil law. The process typically involves filing a notarial succession proceeding (sucesión testamentaria or intestamentaria) before a Mexican notario público, registering the foreign will if one exists, and obtaining judicial or notarial recognition of the heirs' rights. This is not a fast process. Timeshare interests present additional complications because the underlying legal structure of many Mexican resort timeshares - held through a fideicomiso, a bank trust arrangement commonly used by foreigners to hold Mexican coastal property - affects how succession rights are exercised and transferred.

In the United Kingdom, if you own real property (or certain financial accounts) and your California will was not executed in conformity with English formality requirements, a grant of probate may need to be obtained from the English court before the asset can be administered. France requires a French notaire to administer any real property in France regardless of what the decedent's home jurisdiction says. Ethiopia requires a local court proceeding for property held there. Each jurisdiction adds time, professional fees, translation costs, and procedural complexity that the home-jurisdiction estate plan simply cannot anticipate or address.

The result for a California family is often simultaneous administration on multiple fronts: the California probate or trust administration, the Mexican or French or Ethiopian ancillary proceeding, and potentially a Florida maritime claim - each with its own attorney, its own filing fees, its own timeline, and its own demands on executors or successor trustees who were told the estate plan "takes care of everything."

Forced Heirship: You Cannot Disinherit Your Children in Most of the World

California law embraces broad testamentary freedom. Subject to the rights of a surviving spouse under community property law, a California testator may - with narrow exceptions - leave the estate to any beneficiary in any proportion. This reflects the common law tradition shared across the United States.

Most of the world does not share this tradition. Civil law jurisdictions - which include France, Spain, Italy, Germany, Mexico, most of Latin America, and much of Africa - recognize a doctrine of forced heirship (called réserve héréditaire in France and legítima in Spanish-speaking jurisdictions) that mandates a minimum share of the estate for certain heirs, typically children and sometimes a surviving spouse. This mandatory share cannot be overridden by a will, a trust, or any other testamentary instrument.

In France, forced heirship rules are codified in the French Civil Code. If you have one child, that child is entitled by operation of law to one-half of your French estate. Two children are entitled to two-thirds, divided equally. Three or more children are collectively entitled to three-quarters. The testator may freely dispose of only the remaining portion - the quotité disponible. If a California resident owns a Paris apartment and has two adult children he wished to disinherit in favor of a charity, his California will accomplishing that disinheritance is effective for his California assets and void as to the Paris apartment, which French law will direct to the children regardless.

Mexico applies a related concept. Although Mexican law does not impose the same fixed-percentage formula as French law, a will that fails to provide legally required support (alimentos) for dependent children, a surviving spouse, or other dependents with legal claims can be challenged and reduced by a Mexican court. The practical effect is similar: the testator's freedom of disposition is constrained by the legal rights of certain relatives, enforced through Mexican domestic courts applying Mexican law to Mexican-sited property.

This is not a problem that a California revocable trust solves. The trust controls what happens to assets under California law. It does not override the legal rights that French, Spanish, or Mexican law confers on heirs as a matter of their own public policy.

California's Recognition of Foreign Wills - and Its Limits

California Probate Code § 6113 provides that a written will is validly executed in California if its execution complies with the law of the place where the will was executed, the law of the place where the testator was domiciled at execution, or the law of California itself. This provision gives California courts considerable flexibility in recognizing foreign wills - a will executed in compliance with Ethiopian law, for example, may be admitted to California probate if it meets that statute's criteria.

California has also adopted the Uniform International Wills Act, codified at California Probate Code §§ 6380-6390. An "international will" executed in conformity with those provisions - signed in writing before two witnesses and an authorized person (any California-licensed attorney in good standing qualifies under § 6388), with a certificate of compliance attached - is formally valid irrespective of the place of execution, the location of the assets, or the testator's nationality or residence.

The important caveat: California's recognition of foreign wills under § 6113, and the international will mechanism under § 6380 et seq., address formal validity in California proceedings. They do not compel foreign courts to recognize California wills in their own proceedings. A California court may admit an Ethiopian will to California probate. That has no binding effect on what an Ethiopian court does with real property in Addis Ababa. The choice-of-law rules run in both directions, and foreign courts apply their own rules - which often means the lex situs rule leads them to apply their own domestic succession law to property in their territory.

The Compound Problem: A Concrete Illustration

Return to the family from the opening of this article. The retired engineer from Rancho Cucamonga had the following estate picture: a primary residence in California (titled in his revocable trust), an IRA and brokerage account with beneficiary designations, a timeshare in Cabo San Lucas titled in his personal name, and a joint savings account with his spouse. He died at sea, 14 nautical miles off Baja, aboard a Carnival ship.

The legal exposure unfolds across three concurrent tracks. First, the Florida maritime track: because the forum selection clause in the Carnival passenger ticket designates Miami-Dade courts as the mandatory venue, and DOHSA applies as the governing federal statute, any wrongful death claim against Carnival must be filed in federal admiralty court in Florida. The family needs a Florida maritime attorney. Damages are limited to pecuniary losses under DOHSA. California wrongful death law does not apply.

Second, the Mexican ancillary track: the Cabo timeshare was held in the engineer's personal name, not through a fideicomiso or any other structure that might facilitate transfer outside of probate. Mexican succession law applies to the timeshare. The family must retain a Mexican notario público or attorney to commence a succession proceeding in Mexico, present translated copies of relevant California documents, demonstrate heirship under Mexican law, and obtain formal recognition of the transfer. This proceeding operates entirely independently of the California trust administration and will not be concluded quickly.

Third, the California track: the revocable trust controls the primary residence and, if properly funded, the brokerage assets - these pass without probate. The IRA and joint savings account pass by beneficiary designation and title respectively, also outside probate. But if any assets were overlooked during the engineer's lifetime and remained titled in his individual name without trust assignment, the pour-over will directs them into the trust only after a California probate proceeding resolves. The estate is not catastrophic, but it is not clean. The family is managing three separate legal proceedings, in two countries, under three different bodies of law.

None of this required negligence. The California estate plan was competent on its own terms. The problem was that it was designed as a California instrument for California circumstances, without accounting for the legal geography of an estate that extended beyond California's borders - literally, to international waters.

What to Do Now: Practical Steps for the Internationally Exposed Estate

Map your assets against their legal situs. Before any planning conversation, prepare a complete inventory that identifies where each asset is legally located - not just where you live. This means listing foreign real property, foreign bank accounts, foreign business interests, and any recreational or vacation property outside California. Each foreign-sited asset is a potential ancillary proceeding. Knowing what you have, and where it sits legally, is the prerequisite for every other decision.

Consider the legal structure of foreign property holdings. For many foreign jurisdictions, the most effective way to avoid ancillary probate is to hold the foreign asset in a legal structure that transfers outside the succession process altogether. In Mexico, a fideicomiso (bank trust) held through a Mexican institution can designate beneficiaries directly, potentially bypassing the notarial succession process. In some European jurisdictions, a properly structured joint ownership with right of survivorship accomplishes a similar result. In others, a locally-executed will governing only local property is the most efficient instrument. The appropriate structure depends heavily on the specific jurisdiction, the type of asset, and the applicable local law - and requires counsel familiar with both California estate law and the foreign jurisdiction involved.

Understand what your travel insurance actually covers. Pull the policy document - not the marketing summary - and find the provisions governing repatriation of remains. If the coverage is absent, limited to a nominal amount, or subject to exclusions that could apply to your situation, address that before your next international trip or cruise booking. A dedicated travel membership program with repatriation of remains included as a base benefit costs a fraction of what unplanned repatriation expenses can reach.

Enroll in the State Department's Smart Traveler Enrollment Program (STEP). This free service registers your travel with the nearest U.S. embassy or consulate, enabling the embassy to contact your family in an emergency and assist with information about local resources, remains repatriation procedures, and consular services. It does not replace planning, but it ensures that in a crisis, your family has a point of contact with a U.S. government presence in the country where something went wrong.

Have a direct conversation about forced heirship if you own property in a civil law country. If you own real property in France, Mexico, Spain, Italy, or any other civil law jurisdiction, and you have specific intentions about who receives that property on your death, your California estate plan cannot enforce those intentions against the mandatory heirship rights that local law confers. This conversation needs to happen with an attorney who understands the interaction between California succession law and the applicable foreign law - not just with an attorney who drafted your California documents.

Consider an international will under California Probate Code § 6380 et seq. If you own assets in multiple countries, executing a will in the form of a California international will - with the required witnesses, authorized attorney, and attached certificate - gives that instrument the best possible chance of formal recognition in foreign probate proceedings. This is not a guarantee of substantive compliance with foreign forced heirship rules, but it eliminates formal execution defects as a basis for challenging the document abroad.

Coordinate foreign counsel before a crisis requires it. Identifying a qualified attorney in each jurisdiction where you hold real property - before any succession event - compresses what can otherwise be a chaotic search conducted under grief and time pressure. A California estate attorney with an international referral network, or with direct relationships in the relevant jurisdictions, is significantly more useful than one who handles only domestic matters.