G THE B IN EN V C R H E S A N 8 8 D 8 B 1 AR SINCE WWW. NYLJ.COM THURSDAY, SEPTEMBER 6, 2018 Expert Opinion Presumption of Death: What Happens When an Individual Vanishes From Society? By C. Raymond Radigan and dictions, a person was presumed to Jennifer F. Hillman be living for a period of 100 years from the time of their birth. Some ecently, there has been countries later modified this time new attention placed on period by statute. For example, the decades old disappear- one English statute exempted any By And person from penalty for bigamy if ance of Kathleen Durst who C. Raymond Jennifer F. disappeared in 1982. At the Radigan Hillman their spouse had been absent for Rtime of her disappearance, there a period of seven years. A similar was speculation and suspicion According to FBI statistics, English statute provided that par- surrounding her husband Robert 750,000 people are reported miss- ties to leases who were absent for Durst who was from a prominent ing each year in the United States. more than seven years would be New York family. No one has heard USA Today, “By The Numbers: deemed deceased. Today, most from Kathleen Durst in decades, yet Missing Person in the USA.” Some jurisdictions have shortened the she was still considered a missing of these disappearances are linked waiting period by statute and allow person until recently. Earlier this to mass fatalities or national disas- courts to dispense with the time year, the First Department issued ters, while others may be asso- period requirement all together if a decision finding the date of Kath- ciated with possible foul play. the missing person was exposed to leen Durst’s disappearance was the Regardless of the reason, when a specific peril. most probable date of her death. an individual disappears and their In New York, EPTL 2-1.7 gov- Finally determining that Kathleen death cannot be confirmed, the erns presumption of death from Durst was dead, and identifying her family usually needs a death certifi- absence. There are two routes that date of death may have implica- cate or something similarly to file allow a court to presume death tions in contemplated and pending insurance claims, settle accounts from a person’s absence, which in proceedings by her family. or receive other benefits. turn permits the winding up and This article will review what administration of the missing per- occurs when a person is missing son’s estate. Otherwise, one may RAYMOND RADIGAN is a former Surrogate of for an extended period of time. Nassau County and of counsel to Ruskin Moscou have to resort to temporary admin- Faltischek. He also chaired the Advisory Committee istration proceedings for absen- to the Legislature on Estates, Powers and Trusts Origins of the Presumption of tees pursuant to SCPA Article 9. Law and the Surrogate’s Court Procedure Act. Death and EPTL 2-1.7 JENNIFER F. HILLMAN is a partner at the firm where First, a court can declare an her practice focuses on trust and estate litigation. A As explained in In re Boerum St., absentee legally dead if they special thank you to Gabriella Labita whose research paper was the basis for this article. She is a student 11 Bedell 321 (1903), under com- were exposed to a specific peril. at St. John’s University School of Law. mon law and civil law in many juris- This concerns a disappearance THURSDAY, SEPTEMBER 6, 2018 under circumstances that strongly family members or within a com- she would walk away from her stud- point to immediate death. A party munity, or the fact that the absen- ies when she was so close to her must show that the absentee was tee was a “fugitive from justice.” goal. Based upon the unrefuted evi- exposed to a specific peril (and See Gardner v. Northeaster Mutual dence, the First Department held not just an unexplained absence), Life Insurance, 152 Misc 873 (Sup Ct that the clear and convincing evi- and that a thorough search was Delaware Co 1934) aff’d 242 AD 886 dence showed that Jan. 31, 1982, the made for them. If these elements (3d Dept 1934). date of her disappearance, was the are satisfied, the absentee’s date Even if an unexplained absence most probable date of her death. of death may be considered to be and unreasonable failure to com- the date they disappeared. municate are sufficiently estab- What Happens if an Absentee Is If there is no specific peril linked lished, the presumption of death Located? to the absentee, a person can be from absence will not arise unless The presumption of death is only declared legally dead if he or she the petitioner satisfactorily dem- a presumption. If an absentee who has been absent for a continuous onstrates that he or she has con- was presumed dead later returns period of three years provided: ducted a thorough and exhaustive or is otherwise proven to be alive a diligent search was made for search for the absentee in places (the so-called “alleged decedent”), the person during the three year and among individuals likely to the presumption is nullified. Pur- period; the missing person has not have information about the missing suant to SCPA 2226, if the “alleged been seen or heard from by any- person’s whereabouts. For example, decedent” returns, he or she has one during that time period; and in Cavanaugh v. Valentine, the court the right to any of her property the missing person’s absence is not found that a diligent and exhaus- that the fiduciary still has, as well otherwise satisfactorily explained. tive search to find an absentee was as the right to compel an account- If these elements are satisfied, the made only after the petitioner made ing and to enforce the decree made absentee may be deemed to have a report to the Bureau of Missing on the accounting. However, if the died three years after the date such Persons, sought police aid, visited fiduciary accounted and the estate unexplained absence commenced the morgue, searched in places the was fully distributed before the or an earlier date if another proba- absentee frequented, and attempted absentee returned, the absentee ble date of death can be established to get information from the absen- may not recover the property from by clear and convincing evidence. A tee’s relatives and friends. the beneficiaries who received it. booklet issued by some courts titled In the case involving Kathleen When the current version of SCPA “Guidelines for Guardian Ad Litems” Durst, the petitioner submitted 2226 was enacted in 1994, the Leg- provides helpful hints about how to evidence that she disappeared islature noted that “[t]he distribu- satisfy the court that a diligent and without explanation, and without tees receiving the money after a thorough search was undertaken. her car and personal effects, on final accounting are more entitled The person wishing to invoke Jan. 31, 1982, see In re McCormack to protection than the missing per- st the presumption of death from a by Bamote, 161 AD2d 612 (1 Dept son who shows up after a three- period of absence bears the burden 2018). The evidence showed that or five-year absence,” see Second of establishing the facts that may Kathleen Durst had previously been Report of the EPTL/SCPA Legisla- give rise to the presumption by the very close with her sisters and tive Advisory Committee (App. heightened standard of clear and communicated frequently, and it 22A); see Turano, Margaret, McKin- convincing evidence (meaning it was inconceivable that she would ney’s Cons Laws of NY, SCPA §2226. is highly probable that the person abruptly cease all communication This now conforms with SCPA §911 is dead). It is not enough to assert with family and friends. The evi- concerning determination and dis- that three years have passed. A dence also showed that Kathleen tribution of an absentee’s estate. person’s absence can be explained Durst was a medical student two by a variety of circumstances other months away from graduation at Reprinted with permission from the September 6, 2018 edition of the than death, including a desire to the time of her disappearance, and NEW YORK LAW JOURNAL © 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For conceal their identity, a rift with it would be incomprehensible that information, contact 877-257-3382 or [email protected]. # 070-09-18-09.