In life there are many times when the wife or a family member of a missing person is compelled to formalize a legal declaration of death of a person that has been missing dead for many financial reasons. There may be life insurance benefits which must be claimed or pension rights to determine beneficiaries. The petitioner must seek a Circuit Court Judge to enter a final order declaring that a person is now deceased even when there is no body recovered and identified.

In Florida there is a specific statute Section 731.103(3), Florida Statutes (2013), provides that::

A person who is absent from the place of his or her last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. The person’s death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier. . . . A petition for this determination shall be filed in the county in Florida where the decedent maintained his or her domicile . . . .

Florida case law regarding the interpretation of this statute creates a presumption of death after the person has been absent for five years. Woods v. Estate of Woods, 681 So. 2d 903, 905 (Fla. 4th DCA 1996) (“At common law, upon the expiration of seven years’ unexplained absence, a presumption of death arose.” (citing Groover v. Simonhoff, 157 So. 2d 541 (Fla. 3d DCA 1963))). Section 731.103(3) “is merely a procedure by which the Legislature has provided a method to judicially establish the presumption of death which has already arisen by the passage of time.” Id. (citing Groover, 157 So. 2d at 543). In applying section 731.103(3), the standard of proof is “ ‘[whether] the circumstantial evidence amounts to a preponderance of all reasonable inferences that can be drawn from the circumstances in evidence to the end that the evidence is not reasonably susceptible of two equally reasonable inferences.’ ” Id. (alteration in original) (quoting Johns v. Burns, 67 So. 2d 765, 767 (Fla. 1953)).

In one Florida case Here, a petitioner filed a petition, explaining that his sister has been missing since December 24, 1974. Appellant advised the court that his sister left their home in Orlando to go to the neighborhood park, but that she never returned.

Their parents filed a missing person’s report with the Orlando Police Department. There was no indication that his sister would have run away from home and there is no record of her whereabouts. Due to the length of time that Mable Louise Andrews has been missing, there exists a presumption that she is deceased. See § 731.103(3), Fla. Stat. (2013). At a minimum, this person was entitled to an evidentiary hearing before denying the petition. Yet, in this case the probate judge denied the petition without conducting an evidentiary hearing allowing the petitioner to present evidence.

The appellate court reversed the lower trial judge and remanded the case to lower court to determine at an evidentiary hearing whether the petitioner was entitled to a declaration of death of his sister.