Declared death in absentia

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 of time 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.[1] 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.

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 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:

  • 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 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.

Legal aspects

China

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[2][3] 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:

  1. The natural person has disappeared for four years;
  2. The natural person has disappeared for two years from an accident.

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.

India

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.[4]

Ireland

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.[5]

Italy

It takes 20 years in Italy to declare a missing person dead. After ten years from somebody's disappearance, a motion to declare the person legally dead can be filed in a court of law. After that, another ten years must pass before the person can eventually be declared legally dead.

Poland

Declaration of death in absentia is derived from articles 29–32 of Polish Civil Code and exercised as a court sentence. In a general case, 10 years is a timespan of disappearance required for the legal declaration, but the following exceptions apply:

  • no one is declared dead before the end of the year in which one becomes 23 years old;
  • the timespan of disappearance is reduced to 5 years if the person would be 70 years old or more at the time of declaration;
  • if a person would have been a victim of an air or a sea disaster or in an "other exceptional happening", the disappearance timespan is reduced to 6 months, however if the vessel is presumably lost, the time starts to count 1 year after the unkept scheduled day of arrival or 2 years after the last known whereabouts;
  • if a person is missing in another life-threatening event (different than the above), the timespan is 1 year since the life-threatening event ceased.

A court's declaration of death in absentia produces legal effects valid from before the date of the declaration, and going back to the assumed day of death (as declared by the court).

Russia

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:

  • He has been missing for 5 years
  • If the person disappeared under life-threatening circumstances, which made it likely that he or she died from an accident, that person can be assumed dead after 6 months
  • A military or civil person, who disappeared during a military conflict, can be declared dead no earlier than 2 years after the conflict is over

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:

  • Dependants of the person become eligible for the state pension
  • Assets can be inherited
  • If the person was married, the marriage legally ends
  • Personal obligations are terminated

If such decision was a mistake and the person later returned, 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.[6]

United Kingdom

Before 2013

English law generally assumes a person is dead if, after seven years:

  • There has been no evidence that they are still alive.
  • The people most likely to have heard from them have had no contact.
  • Inquiries made of that person have had no success.[7]

This is a rebuttable presumption at common law—if the person subsequently appears, the law no longer considers them dead.

Otherwise, courts may grant leave to applicants to swear that a person is dead (within or after the seven-year period).[7] For example, an executor may make such an application so they can be granted probate for the will. This kind of application would only be made sooner than seven years where death is probable, but not definitive (such as an unrecovered plane crash at sea), following an inquest (see below). Such an application is specific to the court where it is made—thus separate applications must 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.

Presumption of Death Act 2013

These processes were not considered satisfactory, and so in February–March 2013, the Presumption of Death Act 2013 was passed to simplify this process.[8] The new act, which is based on the Presumption of Death (Scotland) Act 1977,[9] 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.[10] 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.[11]

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.[7]

Scotland

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.[12]

United States

The U.S. Constitution provides that all powers not expressly or implicitly assigned to the federal state are reserved to the 50 unitary states. The declaration of a missing person as legally dead thus falls under state jurisdiction unless there is a reason for the federal government to have jurisdiction (e.g. the party was military personnel who went missing while on active duty). Otherwise, there are 57 U.S. jurisdictions that comprise the United States, each of which has its own law on the question.

People who disappear are typically called missing, or sometimes absent. Several criteria are evaluated to determine whether a person may be declared legally dead:

  • The party normally must have been missing from their home or usual residence for an extended period of time, most commonly seven years
  • Their absence must have been continuous and inexplicable (e.g. the person did not say they had found a new job and were moving far away)
  • There must have been no communication from the party with those people most likely to hear from them during the period the person has been missing
  • There must have been a diligent but unsuccessful search for the person and/or diligent but unsuccessful inquiry into their whereabouts.

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.[13] Often the missing person's bank accounts are checked for activity, and possible sightings investigated.

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.[14]

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.[14]

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.[15]

Reappearance

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.

Notable cases

Later discovered

See also

References

  1. ^ Bray, Samuel L. (2010). "Preventive Adjudication". University of Chicago Law Review. 77: 1275. SSRN 1483859.
  2. ^ npc.gov.cn
  3. ^ pkulaw.cn
  4. ^ "Missing person's death date is day court declares so". The Times of India. 10 December 2013. Retrieved 11 April 2017.
  5. ^ "Missing, presumed dead". Citizens Information Board. Retrieved 11 April 2017.
  6. ^ consultant.ru ГК РФ Статья 45. Объявление гражданина умершим
  7. ^ a b c House of Commons Justice Committee, Presumption of Death, Twelfth Report of Session 2010–12 Report, 7 February 2012
  8. ^ UK Parliament. Presumption of Death Act 2013 as amended (see also enacted form), from legislation.gov.uk.
  9. ^ "Presumption of death act welcomed". Daily Express. 2013-03-27. Retrieved 2015-01-19.
  10. ^ "When is a missing person declared dead?" BBC News, 5 December 2007
  11. ^ "Lord Lucan death certificate granted". BBC News, 3 February 2016
  12. ^ "Presumption of Death (Scotland) Act 1977". legislation.gov.uk.
  13. ^ "The rights of the living dead: absent persons in the civil law". Jeanne Carriere, 50 La. L. Rev. 901, 1990
  14. ^ a b "The missing insured and the life insurance death claim". C. Edgar Sentell, FDCC Quarterly, Winter 2004]
  15. ^ "What happens when someone 'legally dead' shows up alive?" The Straight Dope, 13 June 2006
  16. ^ Young, Perry Deane. Two of the Missing: Remembering Sean Flynn & Dana Stone, p. 271 (Press 53: 2009) ISBN 978-0-9816280-9-7
  17. ^ Bass, Thomas A., The Spy Who Loved Us: The Vietnam War and Pham Xuan An's Dangerous Game, p. 187, (PublicAffairs: 2009) ISBN 9781586484095 Accessed via Google Books June 21, 2009.
  18. ^ Page, Tim, Derailed in Uncle Ho's Victory Garden: Return to Vietnam and Cambodia, p. 171 (Scribner: August 2, 1999) ISBN 0684860244 Accessed via Amazon's LOOK INSIDE feature June 21, 2009
  19. ^ "Sweden declares Holocaust hero Raoul Wallenberg officially dead". BBC News. 2016-10-31. Retrieved 2016-10-31.
  20. ^ "Raoul Wallenberg har förklarats död". Expressen.
Algor mortis

Algor mortis (Latin: algor—coldness; mortis—of death), the second stage of death, is the change in body temperature post mortem, until the ambient temperature is matched. This is generally a steady decline, although if the ambient temperature is above the body temperature (such as in a hot desert), the change in temperature will be positive, as the (relatively) cooler body acclimates to the warmer environment. External factors can have a significant influence.

The term was first used by Dowler in 1849. The first published measurements of the intervals of temperature after death were done by Dr John Davey in 1839.

Dead on arrival

Dead on arrival (DOA), also dead in the field and brought in dead (BID), indicates that a patient was found to be already clinically dead upon the arrival of professional medical assistance, often in the form of first responders such as emergency medical technicians, paramedics, or police.

In some jurisdictions, first responders must consult verbally with a physician before officially pronouncing a patient deceased, but once cardiopulmonary resuscitation is initiated, it must be continued until a physician can pronounce the patient dead.

Death hoax

A death hoax is a deliberate or confused report of someone's death that turns out to be incorrect and murder rumors. In some cases it might be because the person has intentionally faked death.

Death in absentia

Death in absentia may refer to:

Declared death in absentia

Sentenced to death in absentia

Death messenger

Death messengers, in former times, were those who were dispatched to spread the news that an inhabitant of their city or village had died. They were to wear unadorned black and go door to door with the message, "You are asked to attend the funeral of the departed __________ at (time, date, and place)." This was all they were allowed to say, and were to move on to the next house immediately after uttering the announcement. This tradition persisted in some areas to as late as the mid-19th century.

Death rattle

Terminal respiratory secretions (or simply terminal secretions), known colloquially as a death rattle, are sounds often produced by someone who is near death as a result of fluids such as saliva and bronchial secretions accumulating in the throat and upper chest. Those who are dying may lose their ability to swallow and may have increased production of bronchial secretions, resulting in such an accumulation. Usually, two or three days earlier, the symptoms of approaching death can be observed as saliva accumulates in the throat, making it very difficult to take even a spoonful of water. Related symptoms can include shortness of breath and rapid chest movement. While death rattle is a strong indication that someone is near death, it can also be produced by other problems that cause interference with the swallowing reflex, such as brain injuries.It is sometimes misinterpreted as the sound of the person choking to death, or alternatively, that they are gargling.

Dignified death

Dignified death is a somewhat elusive concept often related to suicide. One factor that has been cited as a core component of dignified death is maintaining a sense of control. Another view is that a truly dignified death is an extension of a dignified life. There is some concern that assisted suicide does not guarantee a dignified death, since some patients may experience complications such as nausea and vomiting. There is some concern that age discrimination denies the elderly a dignified death.

Dysthanasia

In medicine, dysthanasia means "bad death" and is considered a common fault of modern medicine.Dysthanasia occurs when a person who is dying has their biological life extended through technological means without regard to the person's quality of life. Technologies such as an implantable cardioverter defibrillator, artificial ventilation, ventricular assist devices, and extracorporeal membrane oxygenation can extend the dying process.

Dysthanasia is a term generally used when a person is seen to be kept alive artificially in a condition where, otherwise, they cannot survive; sometimes for some sort of ulterior motive. The term was used frequently in the investigation into the death of Formula One driver Ayrton Senna in 1994.

In absentia

Absentia is Latin for absence. In absentia, a legal term, is Latin for "in the absence" or "while absent".

(In) absentia may also refer to:

Award in absentia

Declared death in absentia, or simply, death in absentia, legally declared death without a body

Election in absentia

Excommunication in absentia

Graduation in absentia

In absentia health care, the provision of healthcare in the absence of a personal contact

Trial in absentia

Lazarus sign

The Lazarus sign or Lazarus reflex is a reflex movement in brain-dead or brainstem failure patients, which causes them to briefly raise their arms and drop them crossed on their chests (in a position similar to some Egyptian mummies). The phenomenon is named after the Biblical figure Lazarus of Bethany, whom Jesus raised from the dead in the Gospel of John.

Megadeath

Megadeath (or megacorpse) is one million human deaths, usually caused by a nuclear explosion. The term was used by scientists and thinkers who strategized likely outcomes of all-out nuclear warfare.

Necronym

A necronym (from the Greek words νεκρός, nekros, "dead" and ὄνομα ónoma, "name") is a reference to, or name of, a person who has died. Many cultures have taboos and traditions associated with referring to such a person. These vary from the extreme of never again speaking the person's real name, often using some circumlocution instead, to the opposite extreme of commemorating it incessantly by naming other things or people after the deceased.

For instance, in some cultures it is common for a newborn child to receive the name (a necronym) of a relative who has recently died, while in others to reuse such a name would be considered extremely inappropriate or even forbidden. While this varies from culture to culture, the use of necronyms is quite common.

Necrophobia

Necrophobia is a specific phobia which is the irrational fear of dead things (e.g., corpses) as well as things associated with death (e.g., coffins, tombstones, funerals, cemeteries). With all types of emotions, obsession with death becomes evident in both fascination and objectification. In a cultural sense, necrophobia may also be used to mean a fear of the dead by a cultural group, e.g., a belief that the spirits of the dead will return to haunt the living.Symptoms include: shortness of breath, rapid breathing, irregular heartbeat, sweating, dry mouth and shaking, feeling sick and uneasy, psychological instability, and an altogether feeling of dread and trepidation. The sufferer may feel this phobia all the time. The sufferer may also experience this sensation when something triggers the fear, like a close encounter with a dead animal or the funeral of a loved one or friend. The fear may have developed when a person witnessed a death, or was forced to attend a funeral as a child. Some people experience this after viewing frightening media.The fear can manifest itself as a serious condition. Treatment options include medication and therapy.The word necrophobia is derived from the Greek nekros (νεκρός) for "corpse" and the Greek phobos (φόβος) for "fear".

Obituary

An obituary (obit for short) is a news article that reports the recent death of a person, typically along with an account of the person's life and information about the upcoming funeral. In large cities and larger newspapers, obituaries are written only for people considered significant. In local newspapers, an obituary may be published for any local resident upon death. A necrology is a register or list of records of the deaths of people related to a particular organization, group or field, which may only contain the sparsest details, or small obituaries. Historical necrologies can be important sources of information.

Two types of paid advertisements are related to obituaries. One, known as a death notice, omits most biographical details and may be a legally required public notice under some circumstances. The other type, a paid memorial advertisement, is usually written by family members or friends, perhaps with assistance from a funeral home. Both types of paid advertisements are usually run as classified advertisements.

Pallor mortis

Pallor mortis (Latin: pallor "paleness", mortis "of death"), the first stage of death, is an after-death paleness that occurs in those with light/white skin.

Post-mortem interval

Post-mortem interval (PMI) is the time that has elapsed since a person has died. If the time in question is not known, a number of medical/scientific techniques are used to determine it. This also can refer to the stage of decomposition of the body.

Posthumous trial

A posthumous trial or post-mortem trial is a trial held after the defendant's death. Posthumous trials can be held for a variety of reasons, including the legal declaration that the defendant was the one who committed the crime, to provide justice for society of family members of the victims, or to exonerate a wrongfully convicted person after their death. Due to the heavy cost, they are usually held only under extraordinary circumstances.

Presumption

In the law of evidence, a presumption of a particular fact can be made without the aid of proof in some situations. The invocation of a presumption shifts the burden of proof from one party to the opposing party in a court trial.

There are two types of presumption: rebuttable presumption and conclusive presumption. A rebuttable presumption is assumed true until a person proves otherwise (for example the presumption of innocence). In contrast, a conclusive (or irrebuttable) presumption cannot be refuted in any case (such as defense of infancy in some legal systems).

Presumptions are sometimes categorized into two types: presumptions without basic facts, and presumptions with basic facts. In the United States, mandatory presumptions are impermissible in criminal cases, but permissible presumptions are allowed.

An example of presumption without basic facts is presumption of innocence.An example of presumption with basic facts is Declared death in absentia, e.g., the law says if a person has been missing for seven years or more (basic fact), that person is presumed dead.

Skeletonization

Skeletonization refers to the final stage of decomposition, during which the last vestiges of the soft tissues of a corpse or carcass have decayed or dried to the point that the skeleton is exposed. By the end of the skeletonization process, all soft tissue will have been eliminated, leaving only disarticulated bones. In a temperate climate, it usually requires three weeks to several years for a body to completely decompose into a skeleton, depending on factors such as temperature, humidity, presence of insects, and submergence in a substrate such as water. In tropical climates, skeletonization can occur in weeks, while in tundra areas, skeletonization may take years or may never occur, if subzero temperatures persist. Natural embalming processes in peat bogs or salt deserts can delay the process indefinitely, sometimes resulting in natural mummification.The rate of skeletonization and the present condition of a corpse or carcass can be used to determine the time of death.After skeletonization, if scavenging animals do not destroy or remove the bones, acids in many fertile soils take about 20 years to completely dissolve the skeleton of mid- to large-size mammals, such as humans, leaving no trace of the organism. In neutral-pH soil or sand, the skeleton can persist for hundreds of years before it finally disintegrates. Alternately, especially in very fine, dry, salty, anoxic, or mildly alkaline soils, bones may undergo fossilization, converting into minerals that may persist indefinitely.

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