In
lawLaw is a system of rules, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets...
,
death in absentia is the status of a person who has been declared legally dead when the person disappears but no identifiable remains can be located or recovered.
In most
common lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
and
civil codeA civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
jurisdictions, it is usually necessary to obtain a court order directing the registrar to issue a
death certificateA death certificate, sometimes medical certificate of the cause of death , is a document issued by a government official such as a registrar of vital statistics that declares the date, location and cause of a person's death....
in the absence of a physician's certification that an identified individual has died.
However, if there is
circumstantial evidenceCircumstantial evidence is evidence which requires or allows a trier of fact to make an inference which supports the truth of an assertion . That is, the evidence only supports indirectly the truth of the assertion...
which 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.
In
lawLaw is a system of rules, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets...
,
death in absentia is the status of a person who has been declared legally dead when the person disappears but no identifiable remains can be located or recovered.
Facts, circumstances, and the "balance of probabilities"
In most
common lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
and
civil codeA civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
jurisdictions, it is usually necessary to obtain a court order directing the registrar to issue a
death certificateA death certificate, sometimes medical certificate of the cause of death , is a document issued by a government official such as a registrar of vital statistics that declares the date, location and cause of a person's death....
in the absence of a physician's certification that an identified individual has died.
However, if there is
circumstantial evidenceCircumstantial evidence is evidence which requires or allows a trier of fact to make an inference which supports the truth of an assertion . That is, the evidence only supports indirectly the truth of the assertion...
which 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
crewA crew is a body or a class of people who work at a common activity, generally in a structured or hierarchical organization. A location in which a crew works is called a crewyard or a workyard...
of the
TitanicThe RMS Titanic was an Olympic-class passenger liner owned by British shipping company White Star Line and built at the Harland and Wolff shipyard in Belfast, United Kingdom...
who were not rescued by the
RMS CarpathiaRMS Carpathia was a Cunard Line transatlantic passenger steamship built by Swan Hunter & Wigham Richardson. Carpathia began her maiden voyage in 1903 and became famous for rescuing the survivors of RMS Titanic after she hit an iceberg and sank on 15 April 1912...
were declared legally dead soon after the Carpathia's arrival at
New York CityNew York is the most populous city in the United States, and the center of the New York metropolitan area, which is among the most populous urban areas in the world. A leading global city, New York exerts a powerful influence over worldwide commerce, finance, culture, fashion and entertainment...
. More recently, death certificates for those who perished in the
September 11, 2001 attacksThe September 11 attacks were a series of coordinated suicide attacks by Al-Qaeda upon the United States on September 11, 2001. On that morning, 19 Al-Qaeda terrorists hijacked four commercial passenger jet airliners...
were issued by the State of New York within days of the tragedy. The same is usually true of
soldierA soldier is a member of the land component of national armed forces; whereas a soldier hired for service in a foreign army would be termed a mercenary...
s
missing after a major battleMissing in action is a status assigned to armed services personnel who are reported missing during active service. They may have been killed, wounded, become a prisoner of war, or deserted. If deceased, neither their remains nor grave can be positively identified...
, especially if the enemy keeps an accurate record of its prisoners of war.
If there is not sufficient evidence that death has taken place, it may take somewhat 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 jurisdiction in which the individual lived before death
- the jurisdiction in which he or she is presumed to have died
- how the individual is thought to have died (murder
Murder, as defined in common law countries, is the unlawful killing of another human being with intent , and generally this state of mind distinguishes murder from other forms of unlawful homicide...
, suicideSuicide is the intentional killing of one's self. Many dictionaries also note the metaphorical sense of "willful destruction of one's self-interest"...
, accidentAn accident is a specific, identifiable, unexpected, unusual and unintended external action which occurs in a particular time and place, without apparent or deliberate cause but with marked effects...
, etc.)
- the balance of probabilities making it more likely than not that the individual is dead
Most countries have a set period of time (seven years in many
common lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
jurisdictions) after which an individual is presumed to be 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 a death certificate to be issued if there has been no real effort to locate the missing person. If the death is thought to have taken place in
international watersThe terms international waters or trans-boundary waters apply where any of the following types of bodies of water transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed regional seas and estuaries, rivers, lakes, groundwater systems , and wetlands...
or in a location without a centralized and reliable police force and/or vital statistics registration system, other laws may be in effect.
England and Wales
In
England and WalesEngland and Wales is a legal unit within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom. Unlike Scotland and Northern Ireland, England and Wales follow the legal system known as English law, and the two form the constitutional successor to the...
, if it is believed that there should be an
inquestInquests in England and Wales are held into sudden and unexplained deaths and also into the circumstances of discovery of a certain class of valuable artefacts known as "treasure trove". Inquests are the responsibility of the coroner....
the local
coronerA coroner or forensics examiner is an official chiefly responsible for investigating deaths, particularly some of those happening under unusual circumstances, and determining the cause of death. Depending on the jurisdiction, the coroner may adjudge the cause himself, or act as the presiding...
will file a report; this may be done to help a family receive a death certificate that will bring some closure. This will bring any suspicious circumstances into light. The coroner will then apply to the Secretary of State for Justice under the Coroners Act 1988 section 15, for an inquest with no body. The seven years rule will only apply in the
High Court of JusticeThe High Court of Justice is, together with the Crown Court and the Court of Appeal, one of the Senior Courts of England and Wales...
on the settlement of an estate. According to a spokesman for the
Ministry of JusticeThe Ministry of Justice has been a department of the government of the United Kingdom since 2007. It was created on 9 May 2007 by merging the Department for Constitutional Affairs with parts of the Home Office responsible for criminal justice policy, sentencing policy, probation, prisons and...
, the number of requests received each year is fewer than 10 but very few of these are refused. Without a body an inquest relies mostly on evidence provided by the
policeA police service is a public force empowered to enforce the law and provide security through the legitimized use of force.The term is most commonly associated with police services of a state that are authorized to exercise the police power of that state within a defined legal or territorial area of...
, and whether the senior officers believe the missing person is legally dead.
United States
The law calls people who disappear “missing” or “absent”, but Professor Jeanne Carriere prefers the dramatic term, “the living dead”. She wrote an article titled, “The Rights of the Living Dead: Absent Persons in
Civil LawCivil law is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not determined, as in common law, by judges. The principle of civil law is to provide all citizens with an accessible and written collection of the laws which...
”, which was published in the
Louisiana Law Review. According to her the number of cases of “living dead” in the
United StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
is estimated to be between 60,000 and 100,000. There are several criteria for declaring someone dead by assumption. One, if he/she has been missing from his/her home or usual residence for a period of seven years (amount of years will vary state to state); or such absence has been continuous without explanation. Also, in the case if persons most likely to hear from him/her have heard nothing; and the missing person cannot be located by
inquiryInquiry is any process that has the aim of augmenting knowledge, resolving doubt, or solving a problem. A theory of inquiry is an account of the various types of inquiry and a treatment of the ways that each type of inquiry achieves its aim.-Deduction:When three terms are so related to one...
and by diligent search.
Often the missing person's bank accounts will be checked for activity and possible sightings will be investigated.
According to Edgar Sentell, a retired senior vice-president and
general counselA general counsel is the chief lawyer of a legal department, usually in a corporation or government department. The term is most used in the United States...
of Southern Farm Bureau Life Insurance Company, almost all the states recognize the presumption of death, by
statuteA statute is a formal written enactment of a legislative authority that governs a country, state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law and the regulations issued by...
or judicial recognition of the
common lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
rule. However, some states have amended their statutes to lower the seven-year period to only five consecutive years missing, and some, such as
MinnesotaMinnesota is a state in the Midwestern region of the United States. The twelfth largest state by area in the U.S., it is the twenty-first most populous, with 5.2 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the...
and
GeorgiaGeorgia is a state in the United States. One of the original Thirteen Colonies that revolted against British rule in the American Revolution, it had been the last of the Thirteen Colonies to be established, in 1733. Georgia was the fourth state to ratify the United States Constitution, on January...
, have reduced the period even shorter to four years.
If someone disappears, those interested can file a
petitionA petition is a request to change something, most commonly made to a government official or public entity. Petitions to a deity are a form of prayer....
to have them declared legally dead. They will have to prove the criteria above that the person is in fact dead. There are constitutional limitations to these procedures: The presumption must arise only after a reasonable amount of time has elapsed. The absent person must be notified; courts permit claimants to be notified by publication. “Adequate safeguards concerning property” provisions must be made in the case that an absent person will show up. There are some states that require those who receive assets of the missing person’s to return them if the person turned out to be alive. If a person is declared dead, when missing, their estate will be distributed as if they were deceased. In some cases, the presumption of death can sometimes be rebutted, according to Sentell, courts will consider evidence that the absent person was a
fugitiveA fugitive is a person who is fleeing from custody, whether it be from private slavery, a government arrest, government or non-government questioning, vigilante violence, or outraged private individuals. As a verbal metaphor and psychological concept, one might also be described as a "fugitive...
from
justiceJustice is the concept of moral rightness based on ethics, rationality, law, natural law, fairness, or equity.-Concept of justice:Justice... concerns the proper ordering of things and persons within a society. As a concept it has been subject to philosophical, legal, and theological reflection and...
, had money troubles, had a bad relationship, or had no family ties or connection to a
communityIn biological terms, a community is a group of interacting organisms sharing an environment.In human communities, intent, belief, resources, preferences, needs, risks, and a number of other conditions may be present and common, affecting the identity of the participants and their degree of...
as reasons not to presume death.
A person can be declared legally dead after they are exposed to “imminent peril” and fail to return, like a plane crash, as portrayed in the movie
Cast AwayCast Away is a film directed by Robert Zemeckis and starring Tom Hanks. Hanks portrays a FedEx employee who is stranded on an uninhabited island after his plane crashes on a flight over the South Pacific. The film depicts his attempts to survive on the island using remnants of his plane's cargo,...
. In these cases courts will generally assume the person was killed even though the usual waiting time for someone to be declared dead has not elapsed yet. Sentell also says, “The element of peril accelerates the presumption of death.” This rule was enacted after the attack on the
World Trade CenterThe World Trade Center was a complex in Lower Manhattan in New York City whose seven buildings were destroyed in 2001 in the September 11 terrorist attacks...
, so that death certificates could be established. Although people who are presumed dead sometimes turn up alive, it is not as common as it used to be. There has been one recent memorable case where this has occurred, such as in the case of John Burney who disappeared after financial problems and reappeared years after, December 1982, to
ArkansasArkansas is a state located in the southern region of the United States. Its name is an Algonquin name of the Quapaw Indians. Arkansas shares a border with six states, with its eastern border largely defined by the Mississippi River. Its diverse geography ranges from the mountainous regions of the...
. His company and wife had already received the death benefits; so, upon returning, the
life insuranceLife insurance or life assurance is a contract between the policy owner and the insurer, where the insurer agrees to pay a sum of money upon the occurrence of the insured individual's or individuals' death or other event, such as terminal illness or critical illness. In return, the policy owner...
company filed a suit against him, his wife, and his company. In the end, Burney’s actions were ruled fraudulent in court, leading to a $470,000 fine.
Reappearance
Missing persons have on rare occasions been found after being declared legally dead. Prisoners of war, people with
mental illnessA mental disorder or mental illness is a psychological or behavioral pattern that occurs in an individual and is thought to cause distress or disability that is not expected as part of normal development or culture. The recognition and understanding of mental disorders has changed over time and...
es who become homeless, and in extremely rare circumstances
kidnappingIn criminal law, kidnapping is the taking away or asportation of a person against the person's will, usually to hold the person in false imprisonment, a confinement without legal authority...
victims may be located years after their disappearance.
Famous cases
- Richard Bingham, 7th Earl of Lucan
Richard John Bingham, 7th Earl of Lucan , a British aristocrat known as Lord Bingham or Lord Lucan and colloquially called "Lucky" Lucan, disappeared in the early hours of 8 November 1974, following the murder of Sandra Rivett, his children's nanny, the previous evening...
- John Brisker
John Brisker was a retired American professional basketball player who disappeared in Uganda in April 1978.-Sports career:...
, basketball player
- Joseph Force Crater, New York judge
- Amelia Earhart
Amelia Mary Earhart ; was a noted American aviation pioneer and author. Earhart was the first woman to receive the Distinguished Flying Cross, awarded for becoming the first aviatrix to fly solo across the Atlantic Ocean...
, pioneer aviator
- Richey James Edwards
Richard James Edwards was rhythm guitarist and lyricist of the alternative rock band Manic Street Preachers, from Blackwood, Wales. He was known for his politicized and intellectual song writing which, combined with an enigmatic and eloquent character, has assured him cult status...
, musician
- Joe Gaetjens
Joseph Edouard Gaetjens was a Haitian American football player who played for the United States national team in the 1950 FIFA World Cup, scoring the winning goal in the 1–0 upset of England.Born in Haiti to a Haitian mother and a Belgian father, Gaetjens went to New York City in the late 1940s to...
, footballer
- Harold Holt
Harold Edward Holt, CH was an Australian politician who became the 17th Prime Minister of Australia in 1966. His term as Prime Minister was brought to an early and dramatic end in December of the following year when he disappeared while swimming at Cheviot Beach near Portsea, Victoria, and was...
, Prime Minister of Australia
- Jimmy Hoffa
James Riddle Hoffa was an American trade unionist.Hoffa served as the General President of the International Brotherhood of Teamsters from 1958–1971 despite being incarcerated during the latter four years of his tenure...
, Teamsters leader
- John Darwin
The John Darwin disappearance case is an investigation into the faked death of British former teacher and prison officer John Darwin, who turned up alive in December 2007, five years after he was thought to have died in a canoeing accident....
, Fraudster
- Teddy Wang
Teddy Wang was a prominent Chinese businessman and founder of the Chinachem Group who was kidnapped for ransom in 1990, and later declared legally dead...
, Entrepreneur, Hong Kong
- Richard Halliburton
Richard Halliburton was an American traveler, adventurer, and author. Best known nowadays for having swum the length of the Panama Canal and paying the lowest toll in its history—thirty-six cents—Halliburton was headline news for most of his brief career...
, Author and Voyager, Pacific Ocean
- Ronald Jorgensen
The Bassett Road machine gun murders were the murders of two men with a .45 calibre Reising submachine gun on 7 December 1963, at 115 Bassett Road, Remuera, New Zealand...
, convicted killer
- Subhas Chandra Bose, Indian freedom fighter