Missing Insured and The Life Insurance Death Claim[dagger], The

FDCC Quarterly, Winter 2004 by Sentell, C Edgar

I.

INTRODUCTION

Life insurance policies invariably require that the beneficiary provide "due proof" of death when a claim is made for a death benefit. Obviously, this is difficult when the person whose life is insured has disappeared without a trace. In most situations, when the claimant can produce the body of the insured complete with a certification of the death by the civil authorities, the claimant has no difficulty proving the death. The difficulty occurs when the insured has disappeared and there is no direct evidence of the manner or fact of the insured's death. Typically, the disappearance is reported to the insurer by the beneficiary shortly after the insured leaves home and the insurer refuses to recognize the evidence submitted as "due proof" of death. Here, the basic question does not relate to how the death occurred but rather to whether it did occur. A number of cases involving insureds who have disappeared include dramatic allegations and an unusual set of facts. For example, an insured was involved in criminal activities and was either killed by criminals or went into hiding to avoid being killed. ' There are cases involving the alleged death of a pilot in combat,2 of a driver in an alligator-inhabited bayou,3 of a swimmer by drowning,4 and of a boatsman who apparently fell off his boat and drowned.5 Frequently, the facts may suggest death by murder or suicide, as well as intentional disappearance.6

II.

THE PRESUMPTION OF DEATH

People often disappear without explanation. This results in questions relating to property rights and responsibilities, including insurance problems, to be worked out as satisfactorily as possible. Because this is not unusual, the law has developed some basic principles and presumptions in connection with the clarification of these problems. Some of these are used in connection with the life insurance contract. One of the most important of these principles is the presumption of death after absence of seven years.

An important point is that in many cases it is not necessary to resort to "presumptions" to prove a person's death, or death at a particular time. There is a virtual unanimity in modern cases, at least implicitly, that proof may be made that a person is dead at any time.7 In the face of evidence indicating that a person probably died, it is not necessary for a prescribed period of time to elapse. Although a presumption of death may arise under certain circumstances, it is universally recognized that death may be proved by circumstantial evidence before the maturation of any presumptive period; the existence of a presumption does not preclude proof of death before the presumption applies.8 Courts disagree from jurisdiction to jurisdiction concerning what circumstantial evidence may be used to prove the insured's death. The following are situations where courts frequently allow the use of circumstantial evidence: 1) where the age of the insured would be beyond human expectation; 2) where the insured's health was seriously impaired when he or she disappeared; 3) where the insured was exposed to danger or peril; 4) where the insured's absence is unexplained and the evidence shows that the insured's character and habits are inconsistent with the voluntary absence for the period involved.

The presumption of death after the unexplained absence of seven years developed after 1800. Prior to that date, in the absence of evidence to the contrary, an absent person was presumed to be living even though he might have been ninety or one hundred years old at the time a question arose. As generally stated today, however, the person will be presumed to have died if (a) he has been missing from his home or usual residence for a period of seven years; (b) such absence has been continuous and without an explanation; (c) persons most likely to hear from him have heard nothing; and (d) he cannot be located by diligent search and inquiry.9 At the present time, this presumption is recognized in almost all the states, either by statute or judicial recognition of the common law rule.10 More recently, however, a number of states have amended their statutes to lower the seven-year period to five consecutive years. In other states, the presumption has been lowered to even less than five years. Two examples are Minnesota and Georgia whose legislatures lowered their presumptive period to four years.11

There is no fundamental difference between the common-law presumption and various statutory presumptions.12 As noted above, one of the elements on which the presumption is based is the requirement for a diligent search. The degree of diligence of the search varies from jurisdiction to jurisdiction and depends upon the individual situations of the missing insureds and the claimants.13

The Uniform Probate Code, adopted in a number of states, contains provisions as to presumption of death. The Uniform Probate Code provides that a person who is absent for a continuous period of five years, during which he has not been heard from and whose absence is not satisfactorily explained after a diligent search or inquiry is presumed to be dead.14 His death is presumed to have occurred at the end of the period unless there is sufficient evidence that death occurred earlier.