Instances of missing individuals who are presumed dead are often the source of news coverage or true crime podcasts. But the process of how the missing are declared dead, legally, is more complicated than you might think.
The Legal Process of Declaring the Missing Dead
In New York, there is no automatic presumption of death if a person goes missing. A court proceeding will need to be commenced in surrogate’s court to ask the court to declare the person dead, with specific requirements:
- In most cases the individual needs to have been continuously missing for at least three years;
- During which, after diligent search, he or she has not been seen or heard of or from; and
- Whose absence is not satisfactorily explained
A diligent search for the missing person must be thorough and exhaustive, and include their last known location and places they tended to go. As many friends, relatives, and coworkers as possible should be contacted and interviewed, and a comprehensive public records search, including missing persons databases, should be undertaken. Courts have noted that a deficient search is the most common reason why these types of applications are denied.
Proving an unexplained absence requires investigating the circumstances of the person’s disappearance to show that death is the only explanation for their absence. For instance, if the person left a note that they wanted “a fresh start” or were a recluse who frequently out of touch with their family, the court may be hesitant to declare them dead.
Setting the Date the Missing Is Declared Dead
In most cases, the court will set the date of death three years after their disappearance. However, if it can be demonstrated that the person was exposed to “specific peril”, the date of death can be set earlier and the court proceeding started before three years have elapsed. For instance, if the missing person was involved in a car crash or boating accident, but the body could not be located, the court may set the date of declared death earlier than three years. After the September 11 attacks, this procedure was used by some families of missing victims of the attacks to establish the declared date of death on September 11, 2001, rather than three years later. They also did not have to wait the full three years to settle their loved one’s estate.
Why Would The Family Need to Do This?
From a legal perspective, a court declaration that a missing person is deceased is necessary to proceed with the normal process of estate administration. Otherwise, their assets may be frozen or treated as abandoned. The missing person may have owned real estate, bank accounts, or other assets that should pass to their heirs. This process allows those heirs to have those assets properly administered and inherited. A surviving spouse may be entitled to a pension or social security benefits that requires proof that their spouse is deceased. If the missing person was a trust beneficiary, it would be necessary to prove they are deceased for the successor beneficiary to take over.
The Return of the Missing
What happens if the missing person, who has been declared dead, returns alive? Although rare, it has happened. A returning absentee has the right to receive any assets of theirs still held by the fiduciary of their estate. However, the returning absentee does not have the right to receive back funds distributed to the beneficiaries in good faith or which has been distributed after the issuing of an accounting decree in court.
While the details of missing persons proceedings are often tragic or macabre, the procedure for the missing to be declared dead is an essential process to bring closure to the family and administer the person’s estate. However, the process is complex, and it is essential to have a full understanding of the process before proceeding.
