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In law, death in absentia is the status of a person who has been declared presumed dead when the person disappears but no identifiable remains can be located or recovered.

Contents

Facts, circumstances, and the "balance of probabilities"

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 Titanic who were not rescued by the RMS Carpathia were declared legally dead soon after the Carpathia's arrival at New York City. More recently, death certificates for those who perished in the September 11, 2001 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 jurisdiction the individual lived in before death
  • The jurisdiction where they are presumed to have died
  • How the individual is thought to have died (murder, suicide, accident, etc.)
  • the balance of probabilities that make it more likely than not that the individual is dead

Most countries have a set period of time (seven years in many common law jurisdictions) after which an individual is presumed to be 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 a death certificate to be issued 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 and/or vital statistics registration system, other laws may be in effect.

Legal aspects of death in absentia

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England and Wales

In England and Wales, if it is believed that there should be an inquest the local coroner will file a report; this may be done to help a family receive a death certificate that will bring some closure. This will bring any suspicious circumstances into light. The coroner will then apply to the Secretary of State for Justice under the Coroners Act 1988 section 15, for an inquest with no body. The seven years rule will only apply 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 10 but very few of these are refused. Without a body an inquest relies mostly on evidence provided by the police, and whether the senior officers believe the missing person is legally dead.[1]

United States

The law calls people who disappear “missing” or “absent”, but Professor Jeanne Carriere prefers the dramatic term, “the living dead”. She wrote an article titled, “The Rights of the Living Dead: Absent Persons in Civil Law”, which was published in the Louisiana Law Review. According to her the number of cases of “living dead” in the United States is estimated to be between 60,000 and 100,000. There are several criteria for declaring someone dead by assumption. One, if he/she has been missing from his/her home or usual residence for a period of seven years (amount of years will vary state to state); or such absence has been continuous without explanation. Also, in the case if persons most likely to hear from him/her have heard nothing; and the missing person cannot be located by inquiry and by diligent search.[2]

Often the missing person's bank accounts will be checked for activity and possible sightings will be investigated.[citation needed]

According to Edgar Sentell, a retired senior vice-president and general counsel of Southern Farm Bureau Life Insurance Company, almost all the states recognize the presumption of death, by statute or judicial recognition of the common law rule. However, some states have amended their statutes to lower the seven-year period to only five consecutive years missing, and some, such as Minnesota and Georgia, have reduced the period even shorter to four years.[3]

If someone disappears, those interested can file a petition to have them declared legally dead. They will have to prove 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 claimants to be notified by publication. “Adequate safeguards concerning property” provisions must be made in the case that an absent person will show up. There are some states that require those who receive assets of the missing person’s to return them if the person turned out to be alive. If a person is declared dead, when missing, their estate will be distributed as if they were deceased. In some cases, the presumption of death can sometimes 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.[citation needed]

A person can be declared legally dead after they are exposed to “imminent peril” and fail to return, like a plane crash, as portrayed in the movie Cast Away. In these cases courts will generally assume the person was killed even though the usual waiting time for someone to be declared dead has not elapsed yet. 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 death certificates could be established. Although people who are presumed dead sometimes turn up alive, it is not as common as it used to be. There has been one recent memorable case where this has occurred, such as in the case of John Burney who disappeared after financial problems and reappeared years after, December 1982, to Arkansas. His company and wife had already received the death benefits; so, upon returning, the life insurance company filed a suit against him, his wife, and his company. In the end, Burney’s actions were ruled fraudulent in court, leading to a $470,000 judgement.[4]

Reappearance

Missing persons have on rare occasions been found after being declared legally dead. 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.[citation needed]

Famous cases

See also

References

  1. ^ When is a missing person declared dead? BBC News, 5 Dec 2007
  2. ^ "The rights of the living dead: absent persons in the civil law" Jeanne Carriere, 50 La. L. Rev. 901, 1990
  3. ^ The missing insured and the life insurance death claim C. Edgar Sentell, FDCC Quarterly, Winter 2004
  4. ^ What happens when someone "legally dead" shows up alive? The Straight Dope, 13 June 2006

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