Was sipping coffee tonight, and reading another site’s blog post. The film “Cast Away” had come up, where . . . [spoiler warning]
Tom Hanks is rescued after being marooned for over four years. During that time, and given the accident, he was legally declared dead and his wife had moved on. He’s returned to the U.S., and starts a new life . . . presumably with his original identity.
My question is this: There are probably cases around where folks have just disappeared due to accidents or simple estrangement, and declared legally dead by a Court (say, a U.S. county court, since I suspect they mostly deal with estates of the deceased).
If I were to back walk into town after a four-year whimsically unannounced-tour of the Himalayas, and found I was considered dead and lost, how would I legally come back to life? What would happen to my estate after they divvied up my baseball card cpllection to my heirs? Would I have to file for a second birth certificate–are there even ‘resurrection’ certificates?
Tripler
No, I’m not planning anything. It’s purely an academic question.
Here is a good article on what happens. It is a bureaucratic nightmare that affects everything from healthcare to the person’s financial accounts. It also happens a lot more often than you think.
"In 2011, the Office of the Inspector General conducted an audit of the Death Master File, and found that, from May 2007 to April 2010, 36,657 living people (12,219 per year) had been prematurely added, nulling them legally dead. After probing deeper, officials estimated that between 700 and 2,800 people were erroneously declared dead every month since the list’s inception. Over the file’s 35-year history, the Inspector General suspects that more than 500,000 Americans have been affected.
…
When a person is listed in the Death Master File, his or her personal information – name, birth date, address, Social Security Number – is distributed to “virtually every financial database” in the country. Since the Death Master File is also in the public domain, anyone with Internet access can steal and use your information to “wreak havoc with your finances and your life.”
It is much worse if you missing for a long period of time and presumed dead by your loved ones. Your estate would have already been settled and your spouse may have already remarried. It would probably take significant legal resources to resolve the myriad of issues this introduces if they can be resolved at all.
That’s an issue I’ve wondered. Is the settlement of a post-mortem estate considered irrevocable? Or can you file a suit to reclaim the property that was settled on your supposed heirs?
The Tichborne case raises another issue relevant to British law: if a title is passed on after its holder’s apparent death, can he reclaim the title if it turns out he’s alive?
The common law tended to prize finality and to protect innocent inheritors, so I suspect you’d be outta luck in getting your stuff - or your title - back.
Being prematurely legally declared dead happened quite a bit to Nantucket whalers, as mentioned in Nathaniel Philbrick’s book In the Heart of the Sea. They were stranded far from home, sometimes for years at a time, surprisingly often. When they got back it was much more of an emotional/social problem than a bureaucratic nightmare in those pre-SSN days.
See also The Return of Martin Guerre and its American remake, Sommersby, for fictional takes on the issue.
Right. Good luck doing anything that requires a credit check, like renting an apartment, getting a loan, buying a car. . . Insurance companies probably don’t like writing policies for people who are legally dead. You might not be able to hold title to a house or a car. You wouldn’t be able to receive Social Security or Medicare when you retire. The TSA might not allow you to fly. You’d have a hard time preventing your heirs from taking your property.
I’m sure I haven’t thought of everything. There are many benefits to being legally alive.
The return Martin Guerre isn’t really fictional. They made up the motivations and feelings of the characters, but the story is real, and pretty much all events and even details in the movie taken from records dating back from the time of the trials.
Interesting reading (and the circle back to the SD). I see there is a distinct difference between one voluntarily walking off, and then being in “imminent peril.” I would figure Tom would have fallen under the latter and been legally far better off since he damn near died.
But then I can see the legal systems’ accountability of those evading contact too.
IMHO, this is indeed the most interesting legal issue.
Adjusting your status with the authorities from “dead” to “alive” certainly means cutting through a nightmarish large amount of red tape and it will take a while. But how do you recover your assets that have been divided among your presumptive heirs? Do you even have a case?
In the US, estate law is a matter of individual state law and precedent overlaid on historical US/English common law, with a side order of Federal tax legislation & regulations. As such there’s not one simple clearcut answer to almost any US legal question. But the large doctrinal issues are pretty uniform from state to state.
As a matter of *typical *US law, once the probate is closed, it’s closed. The estate’s assets all have new owners and the once-dead-now-alive person is without recourse. He/She should have considered this outcome before wandering off and being declared dead.
The Common Law legal system favors stability and permanence over extreme “fairness” in the corner cases. “You can’t unscramble the egg” is a common refrain.