Missing or Legally Dead?

Posted January 25, 2011 in Uncategorized by

Today we’re going to talk about a somewhat depressing topic that’s in the news all-too-frequently: People who are missing and presumed to be dead.

     
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Illinois, where I live, is home to Stacy Peterson, the fourth wife of former police officer Drew Peterson. No one has seen or heard from Stacy since Oct. 2008, and her husband is in jail, where he has been charged with murder in connection with the death of his third wife. These days, this is one of the more high-profile cases of a person who is missing and presumed dead.

If someone has died – under natural, accidental or criminal circumstances – but no body has been found, how can he or she be declared dead? In the legal system, there’s something known as death in absentia (also known as presumption of death). This is a legal ruling that, despite the absence of a body, a person is presumed to be dead.

What Does a Death in Absentia Ruling Involve?

Death in absentia laws vary from state to state. Typically, at least one of the following criteria must be satisfied before someone is presumed to be dead:

  • The person has been missing for four to seven years, those close to the person have had no contact with him and a diligent search has failed to find him, or
  • The person was exposed to imminent peril (such as an airplane crash or the collapse of the World Trade Center) and did not return

If a missing person falls into either of these categories, a petition can be filed asking the state to declare him legally dead. The state usually requires a public notice to be filed, officially notifying the missing person of the death in absentia petition.

Courts do not always give rubber-stamp approval to death in absentia petitions, particularly if there is reason to believe the person might still be alive. For example, someone who had financial problems, was in a bad marriage or was wanted by the police may have simply fled and be in hiding.

If the court does declare a missing person to be legally dead, his estate will be distributed according to his will or state intestacy laws. The state may, however, require heirs to return the bequests they received if the person later turns up alive.

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