Presumption or Proof of Death; Presumption That Missing Person Predeceased Other Deceased Individual; Perils or Tragedies Resulting in Probable Death

  1. Law
  2. Georgia Code
  3. Wills, Trusts, and Administration of Estates
  4. Missing Persons and Persons Believed to Be Dead
  5. Administration of Estate
  6. Presumption or Proof of Death; Presumption That Missing Person Predeceased Other Deceased Individual; Perils or Tragedies Resulting in Probable Death

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  1. A domiciliary of this state who has been missing from the last known place of domicile for a continuous period of four years shall be presumed to have died; provided, however, that such presumption of death may be rebutted by proof. The date of death is presumed to be the end of the four-year period unless it is proved by a preponderance of the evidence that death occurred earlier.
  2. When any domiciliary of this state has been missing from the last known place of domicile for a continuous period of 12 months or more, the death of the individual may be proved by a preponderance of the evidence.
  3. Notwithstanding any proof of a date of death that is earlier than the end of the four-year period set out in subsection (a) of this Code section, the missing individual shall be deemed to have predeceased any other individual who has died prior to the date any petition for letters or other action on the missing individual's estate is filed and from whom the missing individual would have taken an interest in property as an heir or beneficiary or otherwise.
  4. When any domiciliary of this state has been exposed to a specific peril or tragedy resulting in probable death, the death of the individual may be proved by clear and convincing evidence at any time after such exposure.

(Code 1981, §53-9-1, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2003, p. 332, § 1.)

Cross references.

- Presumptions, § 24-14-20 et seq.

Law reviews.

- For survey article on wills, trusts, guardianships, and fiduciary administration for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003).

COMMENT

Subsection (a) of this section replaces former OCGA Sec. 53-9-1(a) and changes the date by which the presumption of death is established from seven years to four years. This subsection also indicates that a date of death earlier than the date at the end of the four-year period may be established. Subsection (b) retains the concept of the provision in former OCGA Sec. 53-9-1(a) that allowed a petition for letters to be filed after an absence of 12 months provided that death is proved by a preponderance of the evidence. Subsection (c) establishes that, regardless of what date of death is established within the four-year period, the missing individual is deemed to have predeceased any individual dying prior to the time of filing the petition and from whom the missing individual would have taken property by will or intestacy or otherwise.

RESEARCH REFERENCES

Am. Jur. 2d.

- 1 Am. Jur. 2d, Absentees, § 6 et seq.

8A Am. Jur. Pleading and Practice Forms, Death, § 168.

C.J.S.

- 1 C.J.S., Absentees, §§ 8 et seq., 18.

ALR.

- Administration on estate of one as absentee as affecting one not notified whose relationship to absentee had its inception after his disappearance, 26 A.L.R. 965.

Validity of by-law of mutual benefit association preventing recovery upon presumption of death from seven years' absence, 36 A.L.R. 982; 40 A.L.R. 1274.

Necessity and sufficiency of showing of search and inquiry by one relying on presumption of death from 7 years' absence, 99 A.L.R.2d 307.


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