Missing Body: Presumptive Death and Wrongful Death Lawsuit

For weeks the media has been dominated by the mystery of what happened to Malaysia Airlines Flight 370, as it disappeared without conclusive evidence of crashing, landing or a hijacking.  However, it is now assumed that it did crash and efforts are now underway to locate and recover the wreckage of the Boeing 777 jet, as well as the remains of the passengers.  Sadly,to date, the authorities have not found the wreckage or any remains of passengers or crewmembers.  While the search continues and there have been some promising signs that authorities may be close to finding some parts of the wreckage, it is possible that the remains of some of the passengers may never be found.

Unfortunately, it is not unusual that in cases of plane crashes, boat accidents or acts of terrorism, that some bodies remain unrecovered.  Despite such a harsh reality, the families of crash victims still need closure and to have their loved ones declared dead, in order to wind up their affairs. In the cases of accidents where no body is recovered, are family members still able to pursue wrongful death lawsuits?

Wrongful Death

When someone’s negligence results in another person’s death, the family of the deceased victim can recover damages in a wrongful death lawsuit.  However, in order to bring a wrongful death lawsuit there must be conclusive evidence that there was a death and that the defendant’s negligence contributed to that death.  A death certificate is necessary to go forward with a wrongful death lawsuit.

Presumptive Death

Each state has rules as to how to have someone declared dead in the absence of direct proof, such as the physical evidence of a body.  States require that a certain amount of time passes before someone can be declared dead and a death certificate issued.  The common law rule is that seven years must pass before a missing person can be declared dead.  However, state law may provide a shorter period, depending on the state.  For example, while Tennessee requires seven years, New York the law requires a period of three years to pass before some is presumptively declared dead.  It must also be proven that a diligent search was made for that person.

Malaysia Flight Lawsuit

The rules are different when the person was “in peril” at the time that he or she went missing.  In the case of plane crash or other circumstances, where it was clear that the person’s life was in imminent danger immediately prior to when that person disappeared, a court may declare that the person is indeed deceased and will order a death certificate.  Once that is done, the family of the deceased person can proceed to finalize that person’s affairs including collecting life insurance, probating a will, collecting death benefits, and filing a wrongful death lawsuit, where appropriate.

The mother of one of the passengers on Malaysian Flight 370 has already taken steps toward filing a wrongful death lawsuit against both Malaysian Airlines, and Boeing, Co., the company that manufactured the missing aircraft.  A petition for discovery has been filed in a Chicago court against both companies despite the fact that no wreckage or passenger remains have been found; other grieving families will likely do the same.

There have been cases, although rare, when someone who was declared dead, turned out to be still alive.  If a wrongful death settlement was paid, and if the recipient had no knowledge that the “deceased” was still alive, should the recipient be required to repay the settlement?

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