Dear Straight Dope:
I recently saw the movie Cast Away with Tom Hanks. In the film he is the victim of a plane crash and presumed dead for four years. Eventually he escapes the island he is stranded on and makes it back to civilization. There's mention once he gets back about "bringing him back to life," which involved a lot of paperwork. I got thinking this sort of thing has to have happened in the past and there must be rules on the books on how it's handled. So, how IS it handled? Is there in fact a LOT of paperwork? And what about debts?
The law calls people who disappear "absent" or "missing." Professor Jeanne Carriere prefers a more dramatic term: "the living dead." In her article, "The Rights of the Living Dead: Absent Persons in Civil Law," published in the Louisiana Law Review, she says
The number of these "living dead" in the United States has been estimated at between 60,000 and 100,000. They create a morass of legal problems. Questions may arise concerning the security of transactions with the missing person’s estate, such as the disposition of his land, the right to proceeds of insurance policies on his life and pensions, the right to a cause of action, the necessity of providing for his dependents, the marital status of his spouse, the paternity and legitimacy of children of his spouse’s second marriage, the conservation of his property from possible waste, the devolution of succession rights that would pass to him, the release of property from a life tenancy, the requirement of his consent to certain transactions, the merchantability of land titles from his estate, and claims of inheritance from him.
Disappearing without explanation, however traumatic it may be for those left behind, doesn’t necessarily have a lot of legal implications–it merely leaves matters in suspense. Death, on the other hand, has all sorts of implications, and from a practical standpoint lets everyone else get on with their lives. Proving that a missing person is dead isn’t easy. In most cases, the burden is on the parties seeking relief–usually the absent person’s relations–to show that the desaparecido is actually dead, or at least dead for all intents and purposes, in order to get what they seek (money, release of property, remarriage, etc.). To assist them, the courts have developed "presumption of death" rules to handle long-term unexplained absences.
Edgar Sentell, a retired senior vice-president and general counsel of Southern Farm Bureau Life Insurance Company, explains that the presumption of death after the unexplained absence of seven years developed after 1800. Before that, if there was no evidence to the contrary, an absent person was presumed to be living even though he might have been ninety or one hundred years old at the time a question arose. Today, an absent person is presumed to have died if:
- he has been missing from his home or usual residence for a period of seven years;
- such absence has been continuous and without explanation;
- persons most likely to hear from him have heard nothing; and
- he cannot be located by diligent search and inquiry.
According to Sentell, almost all the states recognize the presumption, either by statute or judicial recognition of the common law rule. Some states have amended their statutes to lower the seven-year period to five consecutive years, and a few have reduced the period even more–Minnesota and Georgia cut theirs to four.
Here’s how it works. If you disappear, those interested can file a petition to have you declared dead. They’ll have to prove the things I just mentioned. If they do, your estate will be distributed as if you were deceased.
There are some constitutional limitations to these procedures: The presumption arises only after a reasonable amount of time has elapsed. The absent person must be notified, a bit tricky when you don’t know where somebody is. In such cases courts permit the claimant to give notice by publication–nobody really expects the absent person to read it, but it’s the best we can do. Finally, provision must be made for "adequate safeguards concerning property," in case the absent person shows up. Some states require those who receive the missing person’s assets to return them if the person turns up alive. Nevada, for example, has a system that permits proceedings to be started after a person has been missing for three years. The absent person has a year to make an appearance. After that, the property can be distributed to the heirs permanently.
Many state statutes provide a similar procedure for those whose who wish to remarry after their spouse has disappeared. For example, a South Carolina statute says,
when it shall be satisfactorily established to the presiding judge of such court or to a jury on an issue sent to the jury by the judge that such absent spouse has not been heard from for seven years the complaining spouse shall have an adjudication of the issue and such absent spouse shall be conclusively presumed dead in so far as any children or kindred resulting from any marriage of the abandoned spouse during such absence may be concerned, notwithstanding the fact that such absent spouse may later appear alive. The reappearance or return of the absent spouse shall not alter such adjudication or invalidate or upset any subsequent marriage entered into by the abandoned spouse.
The presumption of death can sometimes be rebutted. Sentell says that courts will consider evidence that the absent person was a fugitive from justice, had a bad relationship, was having money troubles, or had no family ties or connection to the community as reasons not to presume death.
In your absence, the administrators of your estate will pay off your creditors and receive whatever compensation they would have received if you really were dead. If you have secured debt (a mortgage or a car loan, for example), those debts will have to be paid or the creditors will reclaim the assets put up as collateral.
In other words, if you return after a long absence, there might not be a lot left for you to reclaim. A lot of paperwork? There will be some. If your heirs received Social Security benefits as a result of your presumed demise, the feds will want some answers from you. Retrieving assets from your surprised heirs will take a petition in probate court. If your estate is large or complex, the stack of paperwork could be sizable.
The situation in Cast Away is a little different from the one we’ve been describing. When someone is exposed to "imminent peril" (for example, a plane crash) and fails to return, courts will generally assume the person was killed even though the usual presumptive death period hasn’t elapsed. Sentell says, "the element of peril accelerates the presumption of death." This rule came into play after the attack on the World Trade Center. Expedited procedures were established for issuance of death certificates.
Do people who are presumed dead ever turn up alive? Yes, although it used to be more common. The case of John Burney is a good recent example. According to the court that heard the case, Burney had been a respected member of the Helena, Arkansas, community, but his company, Helena Rice Drier, Inc., got in financial hot water because of his poor management. In May 1976, he realized the company couldn’t pay its creditors and the business failed. Many of his friends and neighbors lost money. They had stored soybeans in his drier, but Burney couldn’t account for them–he had neither money nor beans.
Not surprisingly, the farmers who had lost beans in the failure were angry; one of them threatened to kill Burney. Several sued. Burney’s personal business dealings began to unwind.
By June 11, 1976, John Burney’s future in Helena looked bleak. While he was driving his truck toward Helena over the Mississippi River bridge the lights of an oncoming car appeared over the crest, approaching in his lane. He swerved to avoid the car and struck the bridge railing. When the truck came to a stop Burney slipped out of the cab. The other vehicle had also stopped and he could see people getting out and hear them shouting. Fearing for his life, Burney "slipped over the railing of the bridge, worked his way down a piling, and dropped into the river and swam downstream a short distance. After coming to the east bank of the river he walked to central Mississippi, where he caught a southbound bus. He drifted for the next few months until he settled in Key Largo, Florida," according to the court’s opinion.
From the night John Burney departed Helena he called himself John Bruce. He didn’t resurface until after the five years required by Arkansas’s presumption-of-death law had passed. In Largo, Burney lived with a second wife whom he married without divorcing his first wife. They had a child.
John Burney reappeared on December 1, 1982, when he returned to Arkansas to visit his father after having been injured in an industrial accident. He wanted to sue, but his lawyer told him he would have to make complete disclosure of his past.
Burney had had a lot of life insurance, Sentell notes. Both his wife and his company got death benefits. When he reappeared, the life insurance company sued him, his first wife, and his company. For technical reasons, the court found that the beneficiaries didn’t have to return the money, but Burney himself wasn’t so lucky. The court ruled his actions were fraudulent and entered judgment against him for $470,000.
Carriere, Jeanne, "The Rights of the Living Dead: Absent Persons in the Civil Law," 50 La. L. Rev. 901 (1990)
Petition for Presumption of Death of Missing Individual Presumed to be Dead, Georgia Probate Court Standard Form: http://forms.lp.findlaw.com/form/courtforms/state/ga/ga000010.pdf
Sentell, Edgar, "The Missing Insured and the Life Insurance Death Claim," FDCC Quarterly, Winter 2004: http://www.findarticles.com/p/articles/mi_qa4023/is_200401/ai_n9391589
South Carolina Code of Laws, Title 20, Domestic Relations: http://www.scstatehouse.net/code/t20c00 1.htm
Southern Farm Bureau Life Ins. Co. v. Burney, 590 F. Supp. 1016 (1984 E.D. Ark.)
Whinery, Andrew, Presumption of Death in New Jersey: 5 Mercer Beasley L. Rev. 1 (1936): http://njlegallib.rutgers.edu/journals/docs/journal.mb.5.1.pdf
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