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Missing Persons: When is Someone Dead for Estate Planning Purposes?

The recent mystery surrounding the disappearance of Malaysian Flight 370 and other recent airline disasters has raised any number of legal issues that may take years to resolve.

First and foremost, you wonder how many passengers on that flight had any kind of estate documents – wills, trusts, etc. Some of the passengers were not of Malaysian descent so those estate documents would be subject to the jurisdiction of the home country of the missing person. The rest would be subject to Malaysian law and how it recognizes estate plans.

Another issue is exactly when are the passengers considered dead for estate planning purposes and such other issues as life insurance, etc. If the plane or its wreckage is never found, when are those passengers legally presumed dead?

Further, when can family of missing passengers institute lawsuits of any kind? Who would they sue? The airline? The manufacturer of the plane and its parts? The maintenance provider? The pilot? Another passenger’s estate that may have had a hand in the mystery? The air traffic controllers? The Malaysian government for negligence? Search crews who might have been negligent? All of the above? Some of the above? It gets complicated when an international flight is involved and the Montreal Convention (a multinational treaty concerning compensation for victims of air disasters) often applies. Another major issue is venue. Where should an action be filed? These kinds of actions can take years.

Usually in the U.S. a person is officially dead when a doctor or a medical examiner declares a person dead. Normally there is a dead body and a death certificate issued. But if a missing person’s body is missing, then what?

There have been many cases over the years throughout the world when people have deliberately gone missing in order to avoid something or someone – like creditors, the police, or their family. Some people have decided to go “off the grid” and start a new life somewhere for their own reasons. It’s understandable if the law is wary about declaring someone dead just because they are missing, even for a few years. In these kinds of cases, application for a court order declaring the person dead may have to be instituted.

Many countries and states follow the seven-year rule where a person will be presumed dead after seven years.  Different jurisdictions have different rules. Depending on the state, this rule can be shortened if a particular state’s legislation changes it. After the catastrophe of 9/11, for example, New York and states surrounding New York allowed persons to be declared dead if they were missing for a few months and death certificates were issued. Some bodies were vaporized in the 9/11 disaster so no bodies or remains of bodies were ever found in order for that person to be declared dead. A legal presumption was made, however, that certain persons were indeed missing, were in or near the World Trade Center, were never found, and were very likely to have died in the calamity there.

Usually courts have to find a ‘reasonable’ belief that someone is dead by not only the fact of the missing person but the circumstances surrounding their disappearance. A court would also have to be convinced that reasonable and good faith efforts were made to find the person or his or her remains. Some jurisdictions may also hold up proceedings if the presumed deceased had a very large estate just to have more scrutiny.

Not all countries have the seven-year rule. Italy, for example, requires 20 years missing to be declared legally dead. One can file an application in Italy after 10 years of a person missing and then wait another 10 years for an official court adjudication.

What are some of the lessons to be taken from the Flight 370 mystery? Again it is a grim reminder to get one’s affairs in order, both personal and business. An estate plan is about smoothing the road after death no matter how big or small an estate is. It is never too early to have an estate plan. If a young couple were on that plane from the U.S., a will would designate a guardian of a minor child back in the states. A will is the only way to that. Without that, there could be protracted legal proceedings over the guardianship of that child.

While there have been other types if international disasters it would be hard to remember one as dramatic as this which features the intersection of so many legal areas: estate planning, aviation law, tort law, labor and employment law, family law, insurance law, etc.

As with other catastrophes, Malaysian 370 was a major wake up call.