Without A Trace (When the rules on Presumption of Death apply)

By Obiter07
Recent tragedies that we read about in headlines such as deaths at sea or a plane crash bring about legal
consequences that those left behind have to contend with. Imagine if a loved one disappears without a trace and you
cannot find him or her despite all your efforts. The uncertainty brings untold woe to the loved ones of those who are
believed to have perished. Unfortunately, if the deaths cannot be established by the recovery of bodies, their families
may have to wait years for final closure.
This will be a discussion of the rules on the presumption of death. It is a morbid topic but it is something that has to
be contended with, if the unspeakable does happen.
Relevant Periods
It is difficult to see the reason why this length of time was the one chosen by law, but it is an absence of 7 years that
will lead to a presumption of death.
ARTICLE 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall
be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years.
If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his
succession may be opened. (n) (New Civil Code or NCC)
The period of waiting for the presumption to arise and succession to be opened can be shortened under the following
circumstances:
ARTICLE 391. The following shall be presumed dead for all purposes, including the division of the estate among
the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of
for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and his existence has not been known for
four years. (n) (NCC)
However, for purposes of remarriage, the 7 years are cut down to 4 under Article 41 of the Family Code (FC).
Thus, one can marry again if the spouse has been absent for 4 consecutive years and the spouse has a well-founded
belief that the absent spouse was already dead.
Also, under the same provision, in case of disappearance where there is danger of death under the circumstances set
forth in Article 391, an absence of 2 years is sufficient for purposes of remarriage.
But from when do you count a person to be absent? It seems hard to establish but one case says it is from the date
when the last news of the absentee is received [JONES, vs. HORTIGUELA G.R. No. 43701. March 6, 1937].
Actions to be taken

For remarriage, one has to institute a summary proceeding for the declaration of death, without prejudice to the
reappearance of the absent spouse (Article 41, FC). It seems that one just has to risk it, ending up with two wives or
two husbands and possibly worse, two mothers-in-law, at least for one short moment in time.
In all other cases, there is actually no need for an action to establish the presumption of death.
In In Re Szatraw, the Court declared that a judicial declaration that a person is presumptively dead, because he or
she had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot
reach the stage of finality or become final; and that proof of actual death of the person presumed dead being unheard
from in seven years, would have to be made in another proceeding to have such particular fact finally determined.
The Court ruled that if a judicial decree declaring a person presumptively dead because he or she had not been heard
from in seven years cannot become final and executory even after the lapse of the reglementary period within which
an appeal may be taken, for such presumption is still disputable and remains subject to contrary proof, then a
petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner. The Court
stated that it should not waste its valuable time and be made to perform a superfluous and meaningless act.
[MANUEL vs. PEOPLE, G.R. No. 165842. November 29, 2005.]
But there may be a need to secure a declaration of absence when there are properties of the absentee that have to be
administered, when the spouse is asking for a separation of property, or for administration of the marriage
properties. There is no need to do so if the absentee has no properties. [Herrera, Remedial Law (1996) Vol. III-A, pp.
367-368]. The appointment of a representative for the absentee is governed by Rule 107 of the Rules of Court:
Sec. 1. Appointment of representative. - When a person disappears from his domicile, his whereabouts being
unknown, and without having left an agent to administer his property, or the power conferred upon the agent has
expired, any interested party, relative or friend, may petition the Court of First Instance of the place where the
absentee resided before his disappearance for the appointment of a person to represent him provisionally in all that
may be necessary. xxx
Actions to be taken upon reappearance
The Family Code does further provide that the recording of the affidavit of reappearance of the absent spouse
automatically terminates the subsequent marriage. Article 42 reads:
ARTICLE 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the
recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous
marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the
spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in
case such fact is disputed. (n)
If a spouse has been absent that long, one would suppose he would have no interest to record his reappearance via
affidavit. However, there are consequences if he does show himself formally again.
ARTICLE 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the
following effects:
(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate, and
their custody and support in case of dispute shall be decided by the court in a proper proceeding;
(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the

community property or conjugal partnership property shall be forfeited in favor of the common children or, if there
are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith,
such donations made to said donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any
insurance policy, even if such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent
spouse by testate and intestate succession. (n)
Those who resurrect themselves after being thought dead also come into certain rights. Reappearance or proof that
one is still alive entitles him to recover his property, the price of such property if it has been sold and any property
acquired through his resources but he foregoes the fruits or rents thereof.
ARTICLE 392. If the absentee appears, or without appearing his existence is proved, he shall recover his property
in the condition in which it may be found, and the price of any property that may have been alienated or the property
acquired therewith; but he cannot claim either fruits or rents. (194)
And the absentee appears to have what sounds like a philosophical duty to prove his very existence so he can protect
his rights.
ARTICLE 393. Whoever claims a right pertaining to a person whose existence is not recognized must prove that he
was living at the time his existence was necessary in order to acquire said right. (195)
If he is an heir, an absentee loses his rights to the estate to his co-heirs unless he has his own successors who can
step into his shoes.
ARTICLE 394. Without prejudice to the provision of the preceding article, upon the opening of a succession to
which an absentee is called, his share shall accrue to his coheirs, unless he has heirs, assigns, or a representative.
They shall all, as the case may be, make an inventory of the property. (196a)
Upon his comeback, however, the absentee can claim his inheritance rights.
ARTICLE 395. The provisions of the preceding article are understood to be without prejudice to the action of
petition for inheritance or other rights which are vested in the absentee, his representatives or successors in interest.
These rights shall not be extinguished save by lapse of time fixed for prescription. In the record that is made in the
Registry of the real estate which accrues to the coheirs, the circumstance of its being subject to the provisions of this
article shall be stated. (197)
Actual Cases
It in interesting to see where the presumption of death has actually been made or put in issue in local cases. This has
been invoked in a case where a family was trapped in building during the Battle for Manila which was set afire by
the Japanese, where the patron of a vessel on a fishing trip jumped from the sinking boat and was last seen
swimming but never heard from by his family, where three bombs were thrown at a vinta and its occupants who
were never seen again or where persons had been arrested, tortured and thereafter disappeared (this sounds very
familiar). [Ibid, pp. 442-444]
The foregoing does cover peculiar circumstances, and it can almost be like having a wake that lasts for years and
years. It is a situation we would not wish on anyone. While some may argue against the length of time that one has

to wait before the presumption kicks in, the law does seek to provide legal closure when it really seems clear that
someone is never coming back.