Presumptive Death

Chart Overview for Presumption of Death

Presumptive death refers to the legal assumption that a person is deceased, even without direct proof of death, after a specified period of absence under certain circumstances.

Here are the key aspects of presumptive death:

• Types of Absence
  • Ordinary Absence: After an absence of seven years, a person is presumed dead for all purposes, except for opening succession. For the purpose of opening succession, an absence of ten years is required. If the person disappeared after the age of seventy-five years, an absence of five years is sufficient for opening their succession.
  • Extraordinary Absence: A person is presumed dead for all purposes, including the division of their estate among heirs, after an absence of four years under specific dangerous circumstances:
    • Being on a vessel lost during a sea voyage or an aeroplane that is missing.
    • Being in the armed forces and missing after taking part in war.
    • Being in danger of death under other circumstances, and their existence has not been known for four years.
    • In cases of extraordinary absence, death is presumed to have occurred at the time of disappearance, not at the end of the four-year period.
• Judicial Declaration
  • A judicial declaration of presumptive death is necessary for the purpose of contracting a subsequent marriage. This requires the present spouse to institute a summary proceeding for the declaration of presumptive death of the absentee.
  • The “well-founded belief” required for a judicial declaration means the present spouse must prove diligent and reasonable efforts to locate the absent spouse, not just mere absence or lack of communication.
  • The presumption of death under the New Civil Code (Articles 390 and 391) is merely one of evidence that can be invoked in any action or proceeding; it cannot be the sole subject of an independent action or proceeding, except for purposes of remarriage under the Family Code.
• Effects
  • Civil Personality: Civil personality is extinguished by death. A deceased person has no legal capacity to enter into contractual relations.
  • Succession: The heirs’ rights to property are inchoate prior to a person’s death; they gain full ownership upon death, subject to liabilities. Acceptance or repudiation of inheritance retroacts to the moment of the decedent’s death.
  • Marriage: A marriage contracted during the subsistence of a previous marriage is null and void, unless the prior spouse was absent for four consecutive years (or two years if in danger of death) and the present spouse had a well-founded belief of their death and obtained a judicial declaration of presumptive death.
  • Agency: Generally, agency is extinguished by the death of the principal or agent. However, exceptions exist, such as when the agency is for the common interest of both parties or a third person, or when the agent acts without knowledge of the principal’s death and third parties are in good faith. The power to foreclose a mortgage, for instance, is not an ordinary agency and continues despite the principal-debtor’s death.
  • Contracts: An offer becomes ineffective upon the death of either party before acceptance is conveyed.
  • Donations: A donation mortis causa takes effect upon the donor’s death and is void if the donor survives the donee. Donations inter vivos take effect immediately and are independent of the donor’s death.
• Proof of Death
  • When two or more persons called to succeed each other die and it’s uncertain who died first, the one alleging prior death must prove it; otherwise, they are presumed to have died at the same time, with no transmission of rights between them.
  • The Rules of Court provide presumptions of survivorship based on age, strength, and sex for situations other than succession, such as contractual disputes.

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