How do you declare someone legally dead?

Question Details:My father-in-law left home due to mental illness about 20 years ago. We've had a private eye trace his addresses up until about 10 years ago but then the trail goes cold. We could not find any record of his death, incarceration, income, or residence past 2000. His wife wants to collect his SS benefits so she can retire and take care of our child. Would that be possible if we can have him declared legally dead? How would we go about doing that?

Asked 4 years ago under Wills, Trusts, Probate | 2770 Views | More Legal Topics

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M.D., Member, California and New York Bar | FreeAdvice Contributing Attorney Answered 4 years ago

In a situation such as this, the law assumes that the person is alive until a reason exists to believe otherwise.  In other words, there is a legal presumption that an individual is alive until proved dead. 

The general rule of law is that, if evidence indicates that the absent person was subject to a particular "peril", they will be legally presumed dead after 7 years (assuming that the disappearance cannot be otherwise explained).  The 7-year time period may be shortened if the state decides to enact legislation to change it.  For example some states provide for a 5-year interval, or in the case of persons missing as a result of 9/11, some states legally provided that a person need only be missing for a matter of months.  Basically, a jurisdiction will not make the assumption that a missing person is dead unless it is reasonable to assume that the person would return if still alive.

Additionally, virtually every state requires that a court will not hold that an individual has died without proof that a legitimate search for them was in fact made.  During such a search, public records must be consulted, wherever the person might have resided, for information regarding marriage, death, payment of taxes, or application for government benefits.  The investigation must also include questioning of the missing person's friends or relatives as to their possible whereabouts.

Based on the preliminary facts that you presented, it would appear that you may go to court to have your father-in-law declared legally dead.  At this point, you should consult with a trust and estates attorney as to the proper procedure for doing so in your state.

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