Under what circumstances is a person declared dead?
The Court’s determination of the date of death of a person when the Court is requested to make a decision declaring a person dead. According to Article 71 of the Civil Code 2015, it is defined as the “legal date of death”.
A person with related rights or interests may request a court to issue a decision declaring that a person is dead in any of the following cases in accordance with Clause 1 Article 71 of Civil Code 2015:
– After three years from the effective date of a court’s decision declaring a person missing, there is still no reliable information that such person is alive;
– The person has disappeared during a war and there is still no reliable information that such person is alive for five years from the end of the war;
– The person met with an accident, catastrophe or a natural disaster and there is still no reliable information that such person is alive for two years from the end of such accident, catastrophe or natural disaster, unless otherwise provided for by law;
– The person has been missing for five consecutive years or longer and there is no reliable information that such person is still alive; this time limit shall be calculated.
Based on the above provisions, it depends on each specific case. A person will be declared dead after the respective missing period mentioned above.
Annulment of the decision when one of the spouses who is declared dead returns
When a person who has been declared dead returns or there is confirmation that he or she is still alive. At the request of that person or the person with related rights and interests, The Court decided to annul the decision declaring the person dead.
About personal relationships
When the Court’s decision declaring a person dead takes legal effect, the marriage, family and other personal relationships of that person shall be settled as with the deceased.
When a person who has been declared dead returns or when there is reliable information that such person is still alive, a court shall, at the request of such person or a person with related rights or interests, issue a decision on annulment of the decision declaring the person dead.
The personal relations of the person who has been declared dead shall be restored when a court issues a decision on annulment of the decision which declared that such person was dead, except for the following cases:
– If the wife or the husband of the person who has been declared dead was permitted by the Court for her or his divorce, the decision granting the divorce shall remain legally effective;
– If the wife or the husband of the person who has been declared dead has married to another person, such marriage shall remain legally effective.
When the Court issues a decision to annul the declaration of a person as dead and the spouse of that person has not yet married another person, the marital relationship shall be restored from the time of marriage.
In case there is a court’s decision for divorce as prescribed in Clause 2, Article 56 of the Law on Marriage and Family, the divorce decision is still legally effective. In case that person’s husband or wife is already married to another person, the marriage relationship established later takes legal effect.
About property relations
When the person who has been declared dead returns, their property relationships also need to be restored. That is, their ownership of their property is restored, then they have the right to ask the person who received their inheritance to return the property, or return the remaining value of the estate in fact. And the person is required to seriously carry out the return of the property. And the law also has strict regulations on cases the requested person does not return the property but also conceals that property for the purpose of benefiting, then when the person who is declared dead by the Court returns, he/she can return the property right to claim all property, including its yield and profits.
Property relations of husband and wife comply with the provisions of the Law on marriage and family. Specifically, this issue is specified in Clause 2, Article 67 of the Law on Marriage and Family 2014, divided into the following two cases:
Firstly, if their marital relationship is restored, the time to restore their property relationship shall be counted from the effective time of the Court’s decision annulling the decision declaring husband or wife dead. When one of the spouses of the person who has been declared dead returns and their marriage relationship is restored, the law recognizes that their marriage relationship has not been interrupted.
However, when dividing the common property of husband and wife in case one party is declared legally dead is determined to divide the common property when the marriage has ended, the property is divided according to the provisions of law. inheritance law. But when that person returns, if their marital relationship is restored, their marriage period will continue from the time of marriage registration.
From that, it can be considered that the previous division of property is a case of division of common property of husband and wife during the marriage period, and applying the provisions of Clause 1, Article 40 of the Law on Marriage and Family, determine the portion of property that The wife or husband of the person who is declared dead by the Court, including the yield and income generated before this person’s return, is the private property of that wife or husband.
Secondly, if their marital relationship is not restored, the property acquired before the Court’s decision on declaring the husband and wife has died takes effect but has not yet been divided shall be resolved as if the property was separated.
This is the article advising on “Some issues related when one of the spouses declared dead returns” by Apra Law Firm. If you have any questions or concerns, please contact the hotline for further advice and support.
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