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Presumption of Death in Texas

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When a person suddenly disappears from society and stays that way for some time, it will surely be alarming. There are times when people become untraceable and unreachable. In those cases, filing missing person report might not be enough. Here is where the term presumption of death comes in.

Despite no clear or direct evidence of death, any person declared missing or absenting himself from civil practice for seven successive years will be legally presumed dead. Unless there is viable proof that he is, indeed, alive within that seven-year period, according to the Texas Law. 

Presumption of death may have different implications in the different aspects of a person’s life. If he was married, with child, and with properties, there’s a difference. Below, the how’s and when’s of the different aspects will be defined to help you understand the situation.

Marriage 

Marriages can be terminable in cases of presumption of death. After the statute of absence has been reached, the marriage will be terminated and the widow can remarry. Upon reappearance of the previous spouse, there is no immediate law that invalidates the succeeding marriage/s made by his spouse. 

Custody

If in case the person presumed dead has a child but has a living spouse or co-parent, then the law automatically assumes that the child would be in the custody of the remaining parent. This, however, can be contested if the presumed parent to have custody is proven unfit to raise the child. Only then can petitions for child custody be welcomed.

Property 

Until the person in question has been confirmed deceased, the law will continue to deal with this person’s property. However, if the person has been absent from the property or residence for seven years or longer, it might result to escheat, or the reversion of property back to the state – if there are no heirs. 

In some cases, when the missing person is presumed dead, his properties and assets are to be distributed as if he were really dead. However, if he turned out to be alive, the state might require the distributed assets to be returned.

The presumption of death, although eases the legality of the situation, may kill what hope is left in the heart of those that have lost someone. There will be pros and cons to the declaration of death in absentia, but one thing is for sure, nothing and no one can take from you when you will personally accept the death of your loved one.

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Hutton Law

Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at timothy.hutton@austintexaslegal.com

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