How canI have my husband declared legally dead if he has been missing for 11 years?

UPDATED: Jan 25, 2011

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How canI have my husband declared legally dead if he has been missing for 11 years?

My husband disappeared 09/00; no one has any info on him including the police. I would like closure because I have met someone who wants to marry me.

Asked on January 25, 2011 under Estate Planning, South Carolina


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

There is a legal presumption that an individual is alive until proven dead.  This means that the law assumes that a person is alive until a reason exists to believe otherwise. However, if evidence indicates that an absent person was subject to a particular "peril", they will be presumed dead after a statutory period of years, unless the disappearance can otherwise be explained. Typically this period is 7 years but it varies from state-to-state. Basically, a jurisdiction will not make the assumption that a missing person is dead unless it is reasonable to assume that the person would return if still alive.

Additionally, most states require that a court will not rule that an individual has died without proof that a legitimate search for them was made.  During such a search, public records must be consulted wherever the person might have resided.  These records include but are not limited to: marriage licenses, death certificates, tax returns, or applications for government benefits.  The investigation must also include questioning of the missing person's friends or relatives as to their possible whereabouts.

At this point, you should consult with an attorney as to the proper procedure for doing so in your state.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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