A person may be legally declared dead in absentia, i.e. a legal presumption of death may be declared, despite the absence of direct proof of the person's death, such as the finding of remains (e.g., a corpse or skeleton) attributable to that person. Such a declaration is typically made when a person has been missing for an extended period and in the absence of any evidence that the person is still alive – or after a much shorter period but where the circumstances surrounding a person's disappearance overwhelmingly support the belief that the person has died (e.g., an airplane crash).
A declaration that a person is dead resembles other forms of "preventive adjudication", such as the declaratory judgment. Different jurisdictions have different legal standards for obtaining such a declaration and in some jurisdictions a legal presumption of death may arise after a person has been missing under certain circumstances and a certain amount of time.
In most common law and civil code jurisdictions, it is usually necessary to obtain a court order directing the registrar to issue a death certificate in the absence of a physician's certification that an identified individual has died. However, if there is circumstantial evidence that would lead a reasonable person to believe that the individual is deceased on the balance of probabilities, jurisdictions may agree to issue death certificates without any such order. For example, passengers and crew of the RMS Titanic who were not rescued by the RMS Carpathia were declared legally dead soon after Carpathia arrived at New York City. More recently, death certificates for those who perished in the September 11 attacks were issued by the State of New York within days of the tragedy. The same is usually true of soldiers missing after a major battle, especially if the enemy keeps an accurate record of its prisoners of war.
If there is not sufficient evidence that death has taken place, it may take somewhat longer, as simple absence does not necessarily prove death. The requirements for declaring an individual legally dead may vary depending on numerous details including the following:
Most countries have a set period of time (seven years in many common law jurisdictions) after which an individual is presumed dead if there is no evidence to the contrary. However, if the missing individual is the owner of a significant estate, the court may delay ordering the issuing of a death certificate if there has been no real effort to locate the missing person. If the death is thought to have taken place in international waters or in a location without a centralized and reliable police force or vital statistics registration system, other laws may apply.
The Chinese law treats declaratory judgment of death and disappearance differently. Relevant provisions can be found in Section 3 ("Declaration of Disappearance and Declaration of Death"), Chapter 2 ("Natural Persons") of the General Provisions of the Civil Law of the People's Republic of China enacted in 2017.
In terms of the declaration of disappearance, where a natural person has disappeared for two years, an interested party may apply to a people's court for a declaration of absence of the natural person. The period of disappearance of a natural person shall be counted from the day when he or she is not heard from. If a person disappears during a war, the period of disappearance shall be counted from the day when the war ends or from the date of absence as confirmed by the relevant authority.
As for the declaration of death, where a natural person falls under any of the following circumstances, an interested party may apply to a people's court for a declaration of death of the natural person:
Where a person has disappeared from an accident, and it is impossible for the person to survive the accident as certified by the relevant authority, an application for a declaration of death of the person is not subject to the two-year period.
In the event of contradictory applications for declaration, meaning that both an application for a declaration of death and an application for a declaration of absence of the same natural person are filed by the interested parties with a people's court, the people's court shall declare the death of the person if the conditions for a declaration of death as set out in this Law are met.
The Chinese law specifically talks about the return of the absentee. The validity of the previous declaratory judgment of death is not imperiled by the sheer fact of return. The absentee or interested party (or parties) must apply for the revocation of the said declaratory judgment, then can it be annulled. The legal consequence of revoking declaratory judgment is essentially about restoration, i.e. the return of property and restoration of marriage. Chinese legislator made a rather peculiar choice to restore marriage between the absentee and his or her spouse, providing that the spouse has not remarried or declared unwillingness of restoring marriage. This is quite unusual among the legal regimes around the world.
Conditions for declaration of death according to the disappearance law (Verschollenheitsgesetz):
Presumption of death is governed by sections 107 and 108 of the Evidence Act, which allows for presumption of death for a person missing for 7 years to be raised in appropriate proceedings before the court.
If there is strong evidence a missing person is dead the coroner may request an inquest under Section 23 of the Coroners Act 1962. If the Minister for Justice grants the inquest then the person may be declared legally dead if that is the outcome of the inquest. As an alternative an application may be made to the high court, normally this is after at least 7 years of going missing, but exceptionally may be earlier if there is strong implication from the circumstances the person is dead.
It takes twenty years to declare a missing person dead. After ten years from someone's disappearance, a motion to declare the person legally dead can be filed in court. After that, another ten years must pass before the person can be declared legally dead.
Declaration of death in absentia is stipulated in articles 29–32 of the Polish Civil Code and pronounced as a court judgment. In general, a period of 10 years is required to pass for a legal declaration to be made, with the following exceptions:
A court's declaration of death in absentia comes into effect retroactively and is subject to legal consequences from before the date of the declaration, going back to the assumed date of death, as declared by the court.
According to article 45 of Civil Code of Russia, a person may be declared dead in absentia only by a court decision, on the following grounds:
A legal date of death is considered to be the date when the court decision declaring person dead was made. If a person disappeared under life-threatening circumstances, the day of his or her actual disappearance may also be considered the legal date of death.
The declaration of death in absentia by the court has the same legal consequences as if the fact of death was proven:
If such decision was a mistake and the person later returns, the decision is nullified and the person becomes eligible to request most of his assets back. However, if the husband or wife of such person married again, the marriage will not be restored. His funds and securities, taken under bona fide circumstances, also cannot be requested back.
Prior to 2013, English law generally assumed a person was dead if, after seven years:
This was a rebuttable presumption at common law – if the person subsequently appeared, the law no longer considered them dead.
Otherwise, courts could have granted leave to applicants to swear that a person was dead (within or after the seven-year period). For example, an executor may have made such an application so they could have been granted probate for the will. This kind of application would only have been made sooner than seven years where death was probable, but not definitive (such as an unrecovered plane crash at sea), following an inquest (see below). Such an application was specific to the court where it was made – thus separate applications had to be made at a coroner's inquest, for proceedings under the Matrimonial Causes and Civil Partnership Acts (for remarriage), for probate, and under the Social Security Act.
These processes were not considered satisfactory, and so in February–March 2013, the Presumption of Death Act 2013 was passed to simplify this process. The new act, which is based on the Presumption of Death (Scotland) Act 1977, allows applying to the High Court to declare a person presumed dead. This declaration is conclusive and cannot be appealed. It is recorded on a new Register of Presumed Deaths, and has the same effect as a registration of death. Death is taken to occur on (a) the last day that they could have been alive (if the court is satisfied that they are dead), or (b) the day seven years after the date they were last seen (if death is presumed by the elapse of time).
In England and Wales, if the authorities believe there should be an inquest, the local coroner files a report. This may be done to help a family receive a death certificate that may bring some closure. An inquest strives to bring any suspicious circumstances to light. The coroner then applies to the Secretary of State for Justice, under the Coroners Act 1988 section 15, for an inquest with no body. The seven years rule only applies in the High Court of Justice on the settlement of an estate. According to a spokesman for the Ministry of Justice, the number of requests received each year is fewer than ten, but few of these are refused. Without a body, an inquest relies mostly on evidence provided by the police, and whether senior officers believe the missing person is dead. One notable person presumed dead under the Act is the 7th Earl of Lucan (Lord Lucan), who was last seen alive in 1974 (although there have been numerous alleged sightings since that time), and whose death certificate was issued in February 2016.
The incidence of presumed death in England and Wales is considered low – in September 2011, it was estimated that only 1% of the 200,000 missing persons each year remained unaccounted for after 12 months, with a cumulative total of 5,500 missing persons by September 2011.
In Scotland, legal aspects of death in absentia are outlined in the Presumption of Death (Scotland) Act 1977. If a person lived in Scotland on the date they were last known to be alive, authorities can use this act to declare the person legally dead after the standard period of seven years.
The declaration of a missing person as legally dead falls under the jurisdiction of the individual states unless there is a reason for the federal government to have jurisdiction (e.g. military personnel missing in combat).
People who disappear are typically called missing, or sometimes absent. Several criteria are evaluated to determine whether a person may be declared legally dead:
Professor Jeanne Carriere, in "The Rights of the Living Dead: Absent Persons in Civil Law" (published in the Louisiana Law Review), stated that as of 1990, the number of such cases in the United States was estimated at between 60,000 and 100,000.
According to Edgar Sentell, a retired senior vice-president and general counsel of Southern Farm Bureau Life Insurance Company, almost all states recognize the presumption of death, by statute or judicial recognition of the common law rule. Some states have amended their statutes to reduce the seven-year period to five consecutive years missing, and some, such as Minnesota and Georgia, have reduced the period to four years.
If someone disappears, those interested can file a petition to have them declared legally dead. They must prove by the criteria above that the person is in fact dead. There are constitutional limitations to these procedures: The presumption must arise only after a reasonable amount of time has elapsed. The absent person must be notified. Courts permit notifying claimants by publication. Adequate safeguards concerning property provisions must be made in the case that an absent person shows up.
Some states require those who receive the missing person's assets to return them if the person turned out to be alive. If a person is declared dead when only missing, their estate is distributed as if they were dead. In some cases, the presumption of death can be rebutted. According to Sentell, courts will consider evidence that the absent person was a fugitive from justice, had money troubles, had a bad relationship, or had no family ties or connection to a community as reasons not to presume death.
A person can be declared legally dead after they are exposed to "imminent peril" and fail to return—as in a plane crash, as portrayed in the movie Cast Away. In these cases courts generally assume the person was killed, even though the usual waiting time to declare someone dead has not elapsed. Sentell also says, "The element of peril accelerates the presumption of death." This rule was enacted after the attack on the World Trade Center, so that authorities could release death certificates. Although people presumed dead sometimes turn up alive, it is not as common as it used to be. In one case where this occurred, a man named John Burney disappeared in 1976 while having financial problems, and later reappeared in December 1982. His company and wife had already received the death benefits—so, on returning, the life insurance company sued him, his wife, and his company. In the end, the court ruled Burney's actions fraudulent.
Missing persons have on rare occasions been found alive after being declared legally dead (see below). Prisoners of war, people with mental illnesses who become homeless, and in extremely rare circumstances kidnapping victims may be located years after their disappearance. Some people have even faked their deaths to avoid paying taxes, debts, etc.
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