Death in absentia (or presumption of death) is a legal declaration that a person is deceased in the absence 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 of time without any evidence that the person is still alive, or when 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.[1]
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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 following:
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.
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 dead.[2]
It takes 20 years in Italy to declare someone dead in absentia. After 10 years from somebody's disappearance, a motion to declare him legally dead can be filed in a court of law. After that, another 10 years must pass, and she or he will be eventually declared legally dead.
The law calls people who disappear "missing" or "absent". 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, or when those persons most likely to hear from him/her have heard nothing; and the missing person cannot be located by inquiry and by diligent search. Professor Jeanne Carriere, author of “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 to be between 60,000 and 100,000.[3]
Often the missing person's bank accounts will be checked for activity and possible sightings will be investigated.
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.[4]
If someone disappears, those interested can file a petition to have them declared legally dead. They will have to 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 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.
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.[5]
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.
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