DEAD IN ABSENTIA LAWS

LEGALLY DEAD BUT STILL ALIVE

New York like every other state in the nation has a law to deal with people who go missing and are presumed dead. Most states follow the common law time of seven years, although New York has a three year requirement for which it will wait to declare someone deceased. It is not unheard of for a Court to issue a death certificate only for the dead person to show up and show themselves to be very much alive. In Ohio the law prohibits a Court from vacating a death certificate three years following its issuance. Of course there was a case, very recently, in 2013 wherein a man was declared deceased in absentia, passed the three year statute of limitations to vacate or modify the death certificate and appeared in Court to request that the Court nullify the death certificate so he could get a driver’s license.

Another recent case out of Pennsylvania was in the news where a mother of two kids simply disappeared one day in 2002, declared legally dead in absentia and the resurfaced after 11 years, in 2013. Perhaps the strangest case was the case of Ben Holmes, who disappeared in 1980, declared deceased after eight years by his wife and then tried to reconnect with his wife in the 1990s. When he learned she was in a relationship with another man he confronted her and she shot him. He never tried to nullify the death in absentia although he did collect a personal injury settlement from his wife.

NEW YORK LAW AND HOW TO PROCEED FOLLOWING THREE YEARS

Most states also have a provision to allow for a disaster, such as the September 11 attacks, so as to allow for death certificates to be issued soon after the calamity rather than forcing families and others to wait the requisite three years. The death certificate is necessary for families to collect on life insurance proceeds, to proceed with any probate proceedings or initiate similar such legal proceedings and to allow for spouses to remarry. A death certificate usually only issues when a doctor can verify that a person is indeed actually deceased. When a body does not exist, the legal requirements to have someone declared dead is more rigorous. A person can be declared deceased at any point, it is simply that the law creates certain presumptions after a certain period of time. Tom Hanks was declared deceased in less than four years in Cast Away. Cases dealing with findings of death in absentia have been litigated since the beginning of courts, as the classic case is of a shipwrecked sailor who resurfaced years later.

WHAT HAPPENS IF THEY RESURFACE?

To nullify the legal finding of death is not the difficult procedure to accomplish. What is difficult is how to deal with the property of the estate that has transferred. It is common place for innocent, bona fide third party purchasers to purchase property of the estate and have good title. Some states, such as California, have laws to deal with a person who is legally dead but still actually alive. Pennsylvania requires that any such estate that is settled as a result of a finding of death by absentia, a “refunding bond” must be posted for any property that he/she receives from the estate. 20 Pa. C.S. § 5703. New York, like most, does not have any such law. In states such as California and Pennsylvania, it is relatively easy to unwind such estate distribution, in New York not so easy.  

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