“The reports of my death are greatly exaggerated.” ~Famous response by Mark Twain, in London, to an English reporter who informed Twain that an American newspaper had published Twain’s obituary.
When can a missing person be declared as deceased under Tennessee law?
From Tennessee’s founding as a state in 1796 until 1941, Tennessee courts followed the English “common law” in regard to the “presumption of death.”
Under the common law, a person missing for 7 years was presumed to be deceased. In 1941, however, the Legislature passed a law which did away with such “presumption of death.”
For 60 years, from 1941 until a new law was passed in 2001, family members of a missing-and-believed-to-be-deceased relative had a tough challenge. The 1941 law required the presentation of evidence to prove the death of the missing relative – even though in most cases there was not sufficient legal “proof” of their missing relative’s death.
In 2001, the Tennessee Legislature passed a law, set forth at Tennessee Code Annotated section 30-3-102, which allows the probate court to apply a “presumption of death” after a person has been missing for 7 years.
Q. How does Tennessee’s “presumption of death” law work?
The law at TCA 30-3-102 works like this:
(1) A petitioner files a petition to declare a missing person dead, and to be named as the personal representative for the estate of such missing person.
(2) Such petition is filed in the probate court for the Tennessee county where the missing person last resided.
(3) The missing person must have been “absent from such person’s place of residence and unheard of for seven (7) years or longer.”
(4) If the 7-year “absence is not satisfactorily explained,” then such missing person “is presumed to be dead.” The law also states that such presumption may be rebutted, or overcome, by proof.
(5) The law also requires that “exposure to specific peril shall be considered in every case,” to be considered by the judge or jury.
Jim Hawkins is a Tennessee general practice and public interest law attorney. This column represents legal information, and is not intended to take the place of legal advice. All cases are different and need individual attention. Consult with a private attorney of your choice to review the facts and law specific to your case. To suggest future column topics, call (615) 452-9200.