Presumption of death
A presumption of death occurs when a person is believed to be dead, 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 presumption is typically made by an individual when a person has been missing for an extended period and in the absence of any evidence that person is still alive—or after a shorter period, but where the circumstances surrounding a person's disappearance overwhelmingly support the belief that the person is dead (e.g., an airplane crash). The presumption becomes certainty if the person has not been located for a period of time that has exceeded their probable life span, such as in the case of Amelia Earhart or Jack the Ripper.
This article is about the legal term. For the novel, see A Presumption of Death.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 declaration and in some jurisdictions a presumption of death may arise after a person has been missing under certain circumstances and a certain amount of time.
In most jurisdictions, obtaining a court order directing the registration to issue a death certificate in the absence of a physician's certification that an identified individual has died is usually necessary. 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, the State of New York issued death certificates for those who perished in the September 11 attacks 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, a legal declaration of such may take 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.
Cestui que Vie Act 1666
An Act for Redresse of Inconveniencies by want of Proofe of the Deceases of Persons beyond the Seas or absenting themselves, upon whose Lives Estates doe depend.
18 & 19 Cha. 2. c. 11
- (Ruffhead: 19 Cha. 2. c. 6)
February 8, 1667
An Act to make provision in relation to the presumed death of missing persons; and for connected purposes.
2013 c 13
England and Wales
March 26, 2013
An Act to make fresh provision in the law of Scotland in relation to the presumed death of missing persons; and for connected purposes.
1977 c. 27
Scotland
July 22, 1977
Legal aspects[edit]
China[edit]
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.
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 a person is not heard from, until the day the individual is recovered or located. 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.
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: