Presumed Death Declaration: Legal Requirements and Effects
The Presumed Death Declaration is a judicial process established for an individual who has disappeared for a determined period, whose existence is uncertain. Its core purpose is to legally define the fate of the missing person's assets and protect the interests of third parties and the estate, without equating it to actual, natural death.
Key Takeaways
Presumed death is a judicial status, not equivalent to natural death.
It primarily aims to manage the missing person's assets and estate.
The process requires specific timeframes, often 5 years since the last news.
The declaration progresses through provisional and definitive possession stages.
The decree can be rescinded if the disappeared person reappears later.
What is the Presumed Death Declaration and its legal basis?
The Presumed Death Declaration is a legal status judicially established for an individual who has been missing for a specified time, as defined in Article 80 of the Civil Code. It is crucial to understand that this declaration does not equate to natural or real death, meaning the individual's personality is not extinguished, allowing for the possibility of re-emergence and rescission of the decree. The fundamental objective is to define the legal status of the missing person's assets and safeguard the interests of the person, third parties, and society by preventing property and rights from being abandoned. This process differs significantly from mere absence, where the person is known to be alive but a curator is appointed to manage their affairs.
- Judicially established for an individual missing for a determined time period.
- Not synonymous with natural death; personality is not extinguished due to possible re-emergence.
- Distinguished from mere absence, where the person is known to be alive and a curator is appointed.
- Aims to define the fate of the patrimonial assets and protect the interests of all involved parties.
What are the substantive requirements for declaring presumed death?
Substantive requirements focus on the factual circumstances surrounding the disappearance, primarily the inability to prove whether the individual is alive or deceased. The law distinguishes between simple and qualified disappearance based on the risk involved and the time elapsed since the last communication. Simple disappearance requires ignoring the whereabouts and diligent searches, coupled with a five-year period since the last news. Qualified disappearance involves high-risk scenarios, such as serious injury in war or involvement in a catastrophe like an earthquake or the loss of a vessel, which significantly shortens the required waiting period before the declaration can proceed.
- Negative condition: Impossibility of proving life or death of the individual.
- Simple disappearance requires 5 years since the last news, alongside diligent inquiries.
- Qualified disappearance includes general risks (war injury) or special risks (catastrophe, loss of vessel).
- Special legislation, such as the law following the 2010 earthquake, reduced the required term to 90 days.
How is the Presumed Death Declaration process formally initiated and managed?
The formal process begins with active legitimation, meaning any person with a protected patrimonial or legal interest can initiate the request, though creditors of the absent person are typically excluded. The competent authority is the judge of the missing person's last domicile within the country. The initial tramitation generally falls under voluntary jurisdiction, but it transforms into a contentious proceeding (summary trial) if opposition arises. A critical formal step involves citations, usually requiring three publications in the Official Gazette with three months between each, although exceptions exist for high-risk cases like shipwrecks, which may require fewer or no publications.
- Legitimation is active for any person with a protected patrimonial or legal interest.
- Competence lies with the judge of the disappeared person's last domicile in the country.
- Tramitation is generally voluntary jurisdiction, becoming contentious upon opposition.
- Requires three citations in the Official Gazette, three months apart, subject to exceptions.
- Proof must demonstrate the disappearance, the diligence performed, and the required timeframes.
- The final judicial sentence fixes the presumptive date of death and orders public registration.
What are the stages and legal effects of the Presumed Death Declaration?
The declaration process unfolds in distinct stages related to the possession of the missing person's assets. The initial stage is Mere Absence, which extends from the last news until the Provisional Possession decree, focused on preserving the estate. Provisional Possession begins with the judicial decree, requiring presumptive heirs to conduct a solemn inventory and provide caution, and imposes administrative restrictions on selling or mortgaging assets. The final stage is Definitive Possession, which typically starts 10 years after the last news. At this point, the probability of death prevails, granting full rights of use, enjoyment, and disposition over the assets, and triggering significant personal, patrimonial, and familial effects, including the dissolution of the marital economic regime.
- Mere Absence stage preserves rights and patrimony until Provisional Possession is decreed.
- Provisional Possession requires heirs to perform a solemn inventory and provide guarantees.
- Restrictions are placed on the administration of assets during the provisional stage.
- Definitive Possession grants full rights of use and disposition, usually after 10 years.
- The declaration produces erga omnes effects, though it remains a simple legal presumption.
- Familial effects include dissolution of the marital economic regime and legal emancipation of children.
When and how can the Decree of Definitive Possession be rescinded?
The Decree of Definitive Possession can be rescinded, a process often referred to as revocation since there were no original vices in the decree itself, but rather a change in circumstances—the reappearance of the missing person. Active legitimation for rescission is granted primarily to the disappeared individual upon their return, but also to legitimate heirs born during the disappearance or a spouse who married during that period. The disappeared person can request rescission at any time after reappearing. Other interested parties are limited by the time until the definitive possessors acquire the assets through prescription. The rescission effects are relative, benefiting only those who obtained the decree, and grant the right to recover the assets in their current state, presuming the good faith of the defendants unless proven otherwise.
- The process is technically revocation, not rescission, as there are no original legal vices.
- The disappeared person can request revocation at any time after reappearing.
- Legitimation also extends to legitimate heirs or a spouse married during the disappearance.
- Other parties are limited by the time possessors acquire assets through prescription.
- Rescission effects are relative, allowing recovery of assets in their current state.
- The law presumes the good faith of the definitive possessors unless evidence suggests otherwise.
How does judicial verification of certain death differ from presumed death?
Judicial verification of death is a distinct process used when there is certainty of death, but the body has not been found or identified, differentiating it from the uncertainty inherent in presumed death. This procedure is applicable in cases of certain death, such as a crew member disappearing without remains or a disappearance that is demonstrably proven, as outlined in Article 81. The interested party submits a request to the judge of the last domicile. The judge's role is to verify the death for civil purposes and order the inscription in the Civil Registry. The resolution must be published in the Official Gazette within 60 days to ensure public knowledge and legal effect.
- Applies when death is certain but the body is unrecovered or unidentified.
- Used for cases like a crew member disappearing without remains or demonstrably proven death.
- The process is initiated by request before the judge of the last domicile.
- The judge verifies the death for civil effects and mandates inscription in the Civil Registry.
- The judicial resolution must be published in the Official Gazette within 60 days.
Frequently Asked Questions
What is the main difference between presumed death and mere absence?
Presumed death applies when the person's existence is uncertain, aiming to settle the estate. Mere absence applies when the person is known to be alive but their whereabouts are unknown, requiring only the appointment of a curator.
Who is legally authorized to request a Presumed Death Declaration?
Any person with a protected patrimonial or legal interest can request the declaration. However, the absent person's creditors are specifically excluded from initiating this legal action.
What happens to the missing person's assets during Provisional Possession?
Heirs receive the assets but must perform a solemn inventory and provide a guarantee (caution). They face administrative restrictions, such as limitations on selling or mortgaging the property.
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