Death in Absentia - Facts, Circumstances, and The "balance of Probabilities"

Facts, Circumstances, and The "balance of Probabilities"

In most common law and civil code jurisdictions, it is usually necessary to obtain a court order directing the registrar to issue a death certificate in the absence of a physician's certification that an identified individual has died. However, if there is circumstantial evidence that 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 crew of the Titanic who were not rescued by the RMS Carpathia were declared legally dead soon after Carpathia arrived at New York City. More recently, death certificates for those who perished in the September 11, 2001 attacks were issued by the State of New York within days of the tragedy. The same is usually true of soldiers missing after a major battle, 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 following:

• The jurisdiction the individual lived in before death
• The jurisdiction where they are presumed to have died
• How the individual is thought to have died (murder, suicide, accident, etc.)
• The balance of probabilities that make it more likely than not that the individual is dead

Most countries have a set period of time (seven years in many common 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 waters or in a location without a centralized and reliable police force and/or vital statistics registration system, other laws may be in effect.