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David Toback, Attorney at Law
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Florida’s Death Presumption Statute Can Aid in Difficult Situations

When someone passes away, there is almost always the attendant grief and sorrow that goes along with it. When we are aware of a passing, relatives can begin making proper arrangements for the disposition of assets, hopefully with the aid of estate documents that have determined how property should be handled.

But there can be situations where someone is almost certainly dead, but we can’t prove it. This is often the case with lengthy disappearances, or with those who are lost to a plane or ship accident, where there are most likely no survivors, but no way to find or identify actual bodies.

Legal Issues In Death Presumption

The situation sounds grim, and it is. But aside from the horrific emotional nature of these situations, important legal issues can arise as well. Specifically, how do loved ones deal with the assets or estate property of someone that they are almost certain has passed, yet whose death cannot be verified? When do estate documents go into effect if there’s no way to determine if someone has actually passed?

Florida has a statute whereby relatives can petition a court to have someone judicially declared deceased. Under Florida law, to have a court presume someone deceased, it must be determined:

  1. That the person has been absent from his or her domicile for 5 years; and
  2. The absence can’t be explained after diligent search.

If there is evidence that a death occurred before the 5-year period, the statute allows a judicial determination before that period. That can be done by direct or circumstantial evidence (which will often be the case when there is no direct evidence of death).

When and Why the Statute is Used

The statute has been used to declare those who disappeared without explanation as deceased, as well as those lost at sea. But where there are other explanations for someone’s disappearance, such as fleeing from the law, courts won’t readily declare someone deceased.

There can be many reasons to ask a court to declare someone as deceased. One reason may be emotional—the need for closure.

But if a deceased person has assets, a family may not want those assets not having an owner, or not going to use. For example, real property in the name of someone who is no longer present can accrue code violations or end up in foreclosure. Family members who may need to rely on life insurance proceeds to survive may need access to those funds.

There are any number of things that can happen to assets that are “in limbo.” Particularly where someone has taken the time to draft estate documents, a family may want to ensure that someone’s property be distributed according to their wishes, instead of sitting around and potentially losing value.

Florida’s presumption of death statute is something we all hope we never have to use. But if you feel that you do, it’s good to know that there is an avenue for closure and administration of an estate in that situation.

Make sure your estate lawyer helps you plan for all contingencies, and helps you ensure estate assets are being properly distributed. Contact Tampa business and probate attorney David Toback to discuss your needs and make sure your estate planning documents are up to date, and reflect your intentions.

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