Missing persons: the declaration of presumed death in England and Wales, Scotland, and Spain

Following up on my article about managing the affairs of missing persons, where I wrote about guardians (EW), judicial factors loco absentis (SCO) and representantes del ausente (SPA), today I share information about declaring missing persons dead in England and Wales, Scotland, and Spain.

England and Wales: declaration of presumed death

The Presumption of Death Act 2013 (in force since 1 October 2014) allows applying to the High Court for a declaration that a missing person is presumed dead. The missing person must be thought to have died or not have been known to be alive for at least 7 years before applications can be made.

Before the enactment of the Presumption of Death Act 2013, it was extremely difficult to obtain a death certificate in England and Wales without a body.

Applying for a declaration of presumed death

Anyone can make an application but the applicant (unless it is the spouse, civil partner, parent, child or sibling of the missing person) must have sufficient interest in the application, something that it is up to the court to decide.

There are certain domicile and residence requirements to be met for the court to be able to hear and make a decision regarding the application:

• the missing person was domiciled in England and Wales when last known to be alive, or habitually resident in England and Wales for the preceding year; or
• the applicant is the spouse or civil partner of the missing person and is domiciled in England and Wales when the application is made or was habitually resident in England and Wales for the preceding year.

If the court is satisfied that the missing person has either died or not known to be alive for seven years, it will issue a declaration of presumed death. The declaration of presumed death is no longer appealable after 21 days of issuance. The applicant can then apply to the General Register Office for a certificate of presumed death.

The declaration of presumed death

The declaration states the date of presumed death. When the declaration is no longer appealable, it becomes effective for all purposes.

A certified copy of an entry in the Register of Presumed Deaths is treated as evidence of the missing person’s death.

The Presumption of Death Act 2013 provides for the variation and revocation of a declaration of presumed death, where, for example, the missing person returns, or there is evidence of the missing person to have been alive at a time later than the one in the declaration.

Scotland: declarator of death

The procedure of legally declaring a missing person dead is governed by the Presumption of Death (Scotland) Act 1977. The missing person must either have been missing for at least seven years, or have been missing for less than seven years but be thought to have died.

NOTE THAT, unlike England and Wales, Scotland allows raising a court action immediately when a missing person is thought to have died (e.g. when a person disappeared in circumstances which present an immediate threat to their life) without having to wait seven years.

Applying for a declarator of death

The process of applying to a court to declare the missing person dead is known as ‘declarator of death’ and is raised either in the Court of Session or in the Sheriff Court, depending on meeting certain conditions:

The action can be raised in the Court of Session if

• the missing person was domiciled in Scotland or habitually resident in Scotland for the preceding year; or
• the applicant is the spouse or civil partner of the missing person and is domiciled in Scotland or habitually resident in Scotland for the preceding year.

The action can be raised in the Sheriff Court if

• the missing person was domiciled in Scotland or habitually resident in Scotland for a year before going missing and their last known place of residence in Scotland was in the sheriffdom; or
• the applicant is the spouse or civil partner of the missing person and is domiciled in Scotland or habitually resident in Scotland for a year before raising the action and have been residing in the sheriffdom for at least forty days before raising the action.

If the court is satisfied that the missing person is more likely than not to have died, they will grant a declarator of death.

The declarator of death

The declarator of death will state the date and time of the presumed death. If the date of death of the missing person is not certain, the court will find that the missing person died since his or her fate was uncertain.

The effect of a declarator of death is conclusive for all purposes. It allows the administration of the missing person’s property and possessions and dissolves any marriage or civil partnership. The person’s death will then be registered on the National Records of Scotland (NRS) and a death certificate could then be applied for.

Spain: declaración de fallecimiento

Spanish law allows applying for a declaración de fallecimiento when a person has been missing for a certain period of time and under certain circumstances, including:

• (a) when a person has been missing for at least 10 years or after 10 years of having no news about the person;
• (b) when a person has been missing for at least 5 years or after 5 years of having no news about the person, if the person would have already reached 75 years of age;
• (c) when a person has been missing for at least 1 year and the person disappeared in violent circumstances which presented an immediate threat to his or her life;
•      (d) when a person has been missing for at least 3 months after being involved in an accident, natural disaster or another similar event.

Applying for a declaración de fallecimiento

The procedure for the declaration of death is set out by Artículo 74, Ley 15/2015, de 2 de julio, and who may start proceedings for the declaration will depend on the circumstances of the missing person:

• The public prosecutor (Ministerio Fiscal) will start proceedings for the declaration of death in the cases stated in apartado 2 and 3 del artículo 194 Código Civil.
• Either the public prosecutor or interested parties may start proceedings for the declaration of death in the cases stated on artículo 193 (circumstances (a), (b) and (c) in the section above) and apartados 4 y 5 del artículo 194 Código Civil (including circumstance (d) in the section above).

The declaration of death is made in a court order issued in non-contentious proceedings, which are not related to the judicial declaration that a person is legally missing (declaración de ausencia). A missing person may be declared legally dead without having been previously declared legally missing. The declaration is then registered on the Civil Register, indicating the date of the presumed death.

The declaración de fallecimiento

The declaration of death, which states the date of presumed death, has a series of legal effects on the estate and family members.

Regarding the estate: The declaration of death becoming final triggers the commencement of succession (apertura de la sucesión) and assets are distributed to the heirs as per testamentary succession or intestacy rules, as applicable. Heirs have an obligation to lodge an inventory of personal property and prepare a description of the real property belonging to the person declared legally dead. Within five years from the declaration of death, heirs are prohibited from transferring any property without valuable consideration. No legacies will be distributed within five years from the declaration of death either, except for charitable legacies.

Regarding family members: All existing family relationships will be terminated, including the community of assets property regime (régimen de gananciales) and the legal custody of children. Pursuant to artículo 85 Código Civil, the declaration of death also dissolves the marriage, irrespective of how and when it was solemnised.

A declaration of death may be revoked when the person declared legally dead reappears or there is evidence that the person is alive.

Recommended read: for more information about the Spanish process of inheriting from a deceased, read my article ‘8 Spanish succession concepts with no English equivalent’.