Declaring the Missing Dead in Surrogate’s Court
11.27.2023
The mysterious disappearance of an individual often makes intriguing content for crime shows and podcasts, but it is in the Surrogate’s Court where the harsh reality of declaring the missing dead plays out. This article explores that process.
Our roadmap is found in Estates, Powers, and Trusts Law (EPTL) 2-1.7, which provides
(a) A person who is absent for a continuous period of three years, during which, after diligent search, he or she has not been seen or heard of or from, and whose absence is not satisfactorily explained shall be presumed, in any action or proceeding involving any property of such person, contractual or property rights contingent upon his or her death or the administration of his or her estate, to have died three years after the date such unexplained absence commenced, or on such earlier date as clear and convincing evidence establishes is the most probable date of death.
(b) The fact that such person was exposed to a specific peril of death may be a sufficient basis for determining at any time after such exposure that he or she died less than three years after the date his or her absence commenced. ‘
(c) The three-year period provided herein shall not apply in any case in which a different period has been prescribed by statute.
Upon the filing of the petition, citation will issue to the missing person, also known as an absentee, and a guardian ad litem will be appointed to protect the interest of the absentee. A hearing is usually required, at which the petitioner bears the burden of satisfying three elements: (1) the absentee has been missing for a continuous period of three years; (2) during which absence, a diligent search was performed; and (3) that the absence cannot be satisfactorily explained. The challenge often rests in the latter two elements, which are explored below, as the first is self-explanatory.
Diligent Search
A diligent search is thorough and exhaustive.1 In addition to the absentee’s last known location, the petitioner should conduct a search in the places the absentee would likely be found, such as a place of employment, educational or religious institution.
The petitioner should also interview individuals likely to possess information about the absentee’s whereabouts, such as relatives, friends and coworkers. A petitioner should demonstrate that police and missing person reports were made, and hospitals and morgues checked. In addition, inquiries to the Board of Elections, Motor Vehicles Department, Social Security Administration, Department of Corrections, Armed Services and any other agency likely to adduce information should be made.2 Finally, the petitioner should check the absentee’s financial records for any activity, other than automatic deposits and/or withdrawals, subsequent to the absentee’s disappearance. Every effort to locate the absentee should be thoroughly documented, including the dates searches were conducted, and every report and response received should be submitted to the court.
If the court finds the search to be less than diligent, it may deny the petition outright or defer determination of the petition until the petitioner is able to submit additional sufficient documentation and/or evidence.3
Unexplained Absence
The petitioner must investigate the circumstances surrounding the absentee’s disappearance and the absentee’s life at that time, as death must be the only reasonable explanation for the absence.4 The absentee’s health, financial situation, marital and family relationships along with the absentee’s habits, frequency of communication with loved ones, and overall state of mind will be subject to examination.5 Generally, an individual who is experiencing an overall positive life, with things to look forward to, and who is in consistent communication with loved ones, does not voluntarily disappear from society. The petitioner should also inquire and document whether the absentee retained or left behind items of value such as a passport, credit cards, money, identification cards and/or a vehicle which may imply an intent to disappear or return.6
If the first two elements have been satisfied but the absentee’s absence cannot be satisfactorily explained, the petitioner should consider applying for temporary letters of administration, which will be discussed below.
Length of Absence Required
If the petitioner is successful in proving all three elements of EPTL 2-1.7, the court will declare the absentee dead and set a date of death. The statute allows the court to accelerate the default three-year date of death finding if the absentee was exposed to specific peril or the petitioner demonstrates with clear and convincing evidence a more probable date of death.
Specific peril refers to the occurrence of a specific event, usually catastrophic, after which the absentee vanished, such as an accident, shipwreck, plane crash or fire.7 Specific peril may also be inferred if death appears inevitable based upon the absentee’s age, condition and/or location of disappearance.8
The clear and convincing standard “does not require an absolute certainty; it merely requires that the evidence make the conclusion ‘highly probable.’”9 The standard has been applied in two Appellate Division, First Department cases, In re Philip10 and In re McCormack.11 The court in In re Philip, although holding that the absentee died as a result of exposure to the specific peril of the September 11, 2001 terrorist attacks, found that had the clear and convincing standard applied, the evidence presented demonstrated that it was highly probable that the absentee died the morning of September 11, 2001. Similarly, the court in In re McCormack held that the evidence presented established “a high probability” that the absentee, Kathleen Durst, perished the day of her disappearance.
Temporary Letters of Administration
As previously mentioned, the court may also issue letters of temporary administration pursuant to Article 9 of the Surrogate’s Court Procedure Act (SCPA), which does not require any allegations or finding of death. SCPA 901(2) merely requires that an absentee who has an interest in property in New York, be absent from his or her abode and that there be a diligent search.12
Citation will issue to the absentee and to the absentee’s presumptive distributees as of the date of the filing of the petition.13 The court may appoint a guardian ad litem for the absentee and on the return of process, hold a hearing to determine the last date the absentee was heard from. Issuance of temporary letters of administration is not prima facia evidence of death.14
Five years after the date the absentee was last heard from, the court will direct the temporary administrator to account and for the absentee to show cause why his or her assets should not be distributed.15
Return of the Absentee
If the absentee who has been declared dead pursuant to EPTL § 2-1.7 later returns, the court can vacate its finding and revoke letters issued to a fiduciary. Pursuant to SCPA 2226, the absentee may compel an accounting but may only recover property still in the possession of the fiduciary, less any unpaid administrative expenses. The fiduciary is not liable for property distributed to beneficiaries in good faith and the absentee may not recover property reflected on a fiduciary accounting that has been settled by final decree.
Similarly, pursuant to SCPA 911, if an absentee for whom a temporary administrator has been appointed returns, the absentee is only entitled to an accounting and the property still in possession of the temporary administrator. The absentee is not entitled to recover any property after a final decree has been issued.
Conclusion
When a loved one vanishes, many difficult questions and legal consequences arise. A prudent attorney may be able to bring some measure of closure to the missing person’s family by following the statutory roadmap outlined above.
This article originally appeared in the NYSBA Trusts and Estates Section Journal earlier this year. To join the Trusts and Estates section, contact Kate Tortora at [email protected].
Diane Matero is an attorney referee in Surrogate’s Court, Kings County. Formerly, Ms. Matero was a principal law clerk to Surrogate Rosemarie Montalbano, counsel to the Queens County Clerk and a practitioner concentrating in trusts and estates law.
Endnotes
1 Matter of Katz, 135 Misc. 861, 871, 239 N.Y.S. 722, 737 (Sur. Ct., Kings County 1930).
2 See generally Matter of Bennett, 12 Misc. 3d 1154(A), 819 N.Y.S. 2d 208 (Sur. Ct., Suffolk County 2006); see also Matter of Cosentino, 177 Misc. 2d 629, 676 N.Y.S. 2d 856 (Sur. Ct., Bronx County 1998).
3 See Matter of Sanchez, 22 Misc. 3d 1128(A), 881 N.Y.S. 2d 366 (Sur. Ct., Nassau County 2009).
4 Butler v. Mutual Life Ins. Co., 225 N.Y. 197, 203 (N.Y. 1919).
5 See generally Kutner v. New England Mut. Life Ins. Co., 57 A.D. 2d 697, 395 N.Y.S. 2d 540 (4th Dep’t 1977); Cosentino, 177 Misc. 2d 629, 676 N.Y.S. 2d 856; Matter of Cirillo, 31 Misc. 3d 1230(A), 930 N.Y.S. 2d 173 (Sur. Ct., Bronx County 2011).
6 Matter of Tangorra, 2016 N.Y. Slip Op. 30742(U), 2016 N.Y. Misc. Lexis 1530 (Sur. Ct., Nassau County 2016); Cirillo, 31 Misc. 3d 1230(A), 930 N.Y.S. 2d 173.
7 Matter of Kanyaro, N.Y.L.J., Apr. 25, 2002 at 23, col. 4, 2002 N.Y.L.J. Lexis 1869 (Sur. Ct., Nassau County 2002).
8 See In re Estate of Downes, 136 Misc. 2d 1031, 518 N.Y.S. 2d 558 (Sur. Ct., Suffolk County 1987), in which the absentee suffered from advanced stage Alzheimer’s disease and disappeared near a large body of water; see also Jacobson v. Jacobson, 56 N.Y.S. 2d 588 (Sur. Ct., Sullivan County 1945), in which an elderly absentee with poor vision disappeared near a body of water; see also Matter of Philip v. Lieberman, 50 A.D. 3d 81, 851 N.Y.S. 2d 141 (1st Dep’t 2008), in which circumstantial evidence supported a finding that the absentee disappeared in the specific peril of the terrorist attacks of September 11, 2001.
9 In re Philip, 50 A.D. 3d 81, 83, 851 N.Y.S. 2d 141, 143 (1st Dep’t 2008).
10 Id.
11 161 A.D. 3d 612, 77 N.Y.S. 3d 389 (1st Dep’t 2018).
12 See generally Matter of Golden, N.Y.L.J., Aug. 10, 2012 at 33, col.5, 2012 N.Y.L.J. Lexis 4262 (Sur. Ct., Kings County 2012).
13 N.Y. SCPA § 902(3).
14 Jacobs v. Stark, 83 Misc. 2d 605, 373 N.Y.S. 2d 758 (Civ. Ct., N. Y. County 1975).
15 N.Y. SCPA § 911(3).
