My Favorite Wife (or, Where on Earth Did You Go? And How Do I Get Title to Property??)

Only Hollywood, or more pointedly, only Cary Grant, Irene Dunn, Granville Bates and Randolph Scott, can turn a tragedy into a screwball comedy, making light of a missing person and the inevitable probate conundrum left by a truly missing person. In real life this would, of course, be a difficult time to say the least with the unanswered question of the whereabouts, literally the open question of the life or death of someone who has literally fallen off the edge of the earth. No explanation, no evidence, and not even the discovery of a body to bring the open question to a logical conclusion.

So, what do you do?

I had that scenario play out in my family with a great aunt whose husband disappeared during the great depression. The rest of her life, she always assumed that her husband was alive and would one day return, even when she passed at 101 years of age, she still assumed he would return. But that left her children, and their lawyer, with an interesting conundrum. If my great uncle were alive somewhere, no matter how unlikely that might be, it had to be determined before my great aunt’s estate could be probated…and, just who passed first would be essential in determining if the probate of two estates was needed to pass legal title to property. In that time and in that state, it was the Common Law which controlled which required a seven-year disappearance and compelling evidence to secure a declaration of death.

There may be reasons other than probate for determining, or declaring, the death of a missing person more akin to that old 1940’s screwball comedy. It might be needed for remarriage or the collection of benefits or even insurance proceeds. Probate will always be the number one reason for seeking a declaration of death to resolve the legal affairs of a missing person, it will almost always require “court orders” and those will almost always be “probate orders” sufficient for third parties to rely upon in distributing assets. At the end of the day, you may find yourself in need of a declaration that a missing person has been gone so long he or she may be legally declared to have died even though there is no tangible or physical evidence of death.

All states have just the answer you may need, and Florida is no different. We have statutory provisions for just such an occasion. Under Florida Statute §731.103(3), “(a) person who is absent from the place of his or her last-known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead.”

That is the good news but there are those fateful words “after diligent search and inquiry.” In order to achieve this simple result, you literally must show the court that you have diligently exhausted every reasonable avenue or option to try and locate this missing person. In some matters that might be difficult and exhausting, and expensive. In other cases, even the situation or cause of the missing person’s absence may make the explanation easier to support, such as, when there is a presumed drowning accident, as occasionally happens along our beautiful Emerald Coast, whether on the beach or on the water in a boat, in which the body is never recovered. I am not certain, but the collapse of the World Trade Center was so catastrophic I think it is more than likely there were those whose remains were never recovered but that type of catastrophic event would certainly make such a presumption easier to make.

In those types of circumstances, it is possible for a missing person to be declared dead even before the five-year period. Whether the type of obvious calamity just mentioned or some other event in which it can be shown the missing person was exposed to some situation or dangerous circumstance where the logical threat to life and limb is so great that the result can be implied, or even evidence suggesting an intentional suicide, then Florida has that covered as well. Florida Statute §731.103(4) clearly provides that in such cases, the person can be presumed dead, if not as of the date of the calamity or event itself, certainly before the statutory five-year period.

But now you ask, okay, that’s all good and fine but how do we do that? Well, that is where your attorney comes in. The interested party, just as in an ordinary probate matter, is going to have to start by filing a lawsuit. We start in the county where the missing person was last residing with the intent to permanently reside there, sometimes referred to as “domicile,” and we are looking at where the missing person had their driver’s license, mail, taxes, and important legal matters sent. A petition is filed in the probate division of the circuit court of the county of last residence or domicile. If there is any question about where the missing person resided, or if the person did not reside in Florida then, under Florida Statute §731.103(3), it is still possible to file an action in any circuit court of any county in Florida where there is some logical connection of the missing person to the county such as the county where the missing person was last seen.

The next step after filing the petition, which opens the lawsuit, is to publish the notice in the newspaper and wait the statutory time after publication to set the case for trial on the issue of declaring the death of the missing person. At the trial we must “establish death” through direct or circumstantial evidence either of the type of calamity which leads to the inescapable conclusion the missing person has died or, in both calamity or passage of time, evidence of the absence any records indicating the missing person is still in existence by showing the reasonable and diligent search for the person. If the evidence is deemed to sufficiently prove the missing person has most likely died, then the missing person is eligible to be declared deceased.

Once the court declares the missing person dead, an order is prepared and sent to the clerk of the court who issues the order. Once the order is served upon the Florida Department of Health, the Department of Health finally issues a presumptive death certificate in the form and manner provided by Florida Statute §382.012. Only after declaring a missing person dead, and the issuance of the presumptive death certificate, then, whether it is filing a claim on an insurance policy or filing a Petition to Probate the Estate of the missing person, the interested party can finally take the appropriate action.

This article is for general information only and is not intended as and does not constitute legal advice or solicitation of a prospective client. It should not be relied on for legal advice in any particular factual circumstance.