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Family law RECOGNITION OF A PERSON AS MISSING OR DECEASED

Sulyk Roman

Head of family law practice

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sulyk@prikhodko.com.ua

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An attorney with extensive experience specializing in complex family disputes. As Head of Practice, he combines deep legal expertise with a personalized approach to every client. He ensures strategic protection of family interests and delivers impeccable results in the most challenging cases.

RECOGNITION OF A PERSON AS MISSING OR DECEASED

In the conditions of hostilities, migration processes or simply extraordinary circumstances, the issue of recognizing a person as missing or dead becomes of particular importance.

For many families, this is not only a legal, but also a deeply emotional problem, because the implementation of inheritance rights, receiving social benefits, the ability to enter into new marital relations or perform other legally significant actions depend on the solution of such an issue.

The legal regulation of the institution of missing persons and declaring a person dead is concentrated in legislation.

And in this article, we will consider how these rules of law are applied in practice.

Concept and legal meaning

Recognition of a person as missing is a state when a person has disappeared and for a long time there is no information about his whereabouts. This situation creates serious difficulties for his relatives and counterparties, since the absence creates legal uncertainty.

Declaring a person dead is a more radical legal procedure that actually equates it with death with all legal consequences. Declaring a person dead opens the inheritance, terminates the marriage and other personal non-property and property rights and obligations.

Regulatory regulation

According to the law:

a person may be declared missing by a court decision if there is no information about his/her whereabouts at his/her place of residence within one year;
declaring dead is allowed after the expiration of a three-year period of absence, and in case of disappearance under life-threatening circumstances (for example, during hostilities, catastrophe) – after six months;
For servicemen missing in connection with hostilities, the period may be even shorter, which is due to the urgent need for a quick settlement of legal relations.

Procedure for applying to the court

The process of recognition as missing or dead is regulated by the law. The application is submitted by an interested person – a family member, heir, creditor or guardianship authority.

The application must indicate:

circumstances of disappearance;
measures taken for the search;
confirmation from the police, military units, the State Border Guard Service, etc.

The court opens proceedings, checks the evidence, may request additional information and, after examining all the materials, makes a decision.

Consequences of recognition as missing:

Guardianship is established over the person’s property;
Alimony, debts can be paid from its accounts;
The marriage is not terminated, but the other spouse has the right to divorce in a simplified manner.

Thus, missing persons is an intermediate state that is not yet equal to death, but allows you to settle part of vital legal relations.

Consequences of declaring dead

Declaring a person dead has almost the same legal consequences as actual death:

opening of inheritance;
termination of marriage;
termination of obligations closely related to a person (for example, a lifetime maintenance agreement).

At the same time, the law provides guarantees in case such a person appears. For example, it can demand the return of its property, which has unreasonably passed to other persons, except for cases when the property is alienated by bona fide acquirers.

It will also be useful: ESTABLISHING THE FACT OF DEATH IN TEMPORARY OCCUPATED TERRITORIES

Judicial practice

When considering such cases, the courts of Ukraine proceed from the principle of thorough verification of evidence, since the consequences of declaring a person dead are irreversible for many subjects.

It should be noted that the court cannot limit itself to explanations of relatives, but is obliged to request official certificates from law enforcement agencies, military structures, and the State Border Guard Service.

International experience

In the legal systems of other states, there are similar institutions. For example, in Germany, a missing person can be declared dead after ten years, and if the circumstances were life-threatening, after a year.

In France, four years later. The comparison shows that Ukrainian legislation establishes relatively short deadlines, which is primarily due to the military situation and the need to protect the interests of the families of the disappeared.

Problematic aspects

Among the problems that arise in practice:

Insufficient evidence – police authorities often close criminal proceedings due to lack of information, and the court does not have clear guidelines on what evidence is sufficient.
Property conflicts – heirs dispose of property that may be needed by the person himself in case of its return.
The moral and ethical aspect is that family members are forced to actually recognize a loved one as dead, which is psychologically difficult.

Conclusions

The institution of recognizing a person as missing and declaring him dead performs an important function — the elimination of legal uncertainty in social relations and in the legal plane.