Presumption of death

A presumption of death occurs when an individual is believed to be dead, despite the absence of direct proof of the person's death, such as the finding of remains attributable to that person. Such a presumption is typically made when a person has been missing for a long
period and in the absence of any evidence that person is still alive—or after a shorter period, but where the circumstances surrounding a person's disappearance overwhelmingly support the belief that the person is dead. The presumption becomes certainty if the person has not been located for a period of time that has exceeded their probable life span, such as in the case of Amelia Earhart or Jack the Ripper.
A declaration that a person is dead resembles other forms of "preventive adjudication", such as the declaratory judgment. Different jurisdictions have different legal standards for obtaining such declaration and in some jurisdictions a presumption of death may arise after a person has been missing under certain circumstances and a certain amount of time.

Legal aspects

Austria

According to the Austrian Declaration of Death Act, the following waiting periods apply before a court can declare a missing person legally dead:

General disappearance: Generally 10 years after the last sign of life. This period is reduced to 5 years if the missing person would have reached the age of 80 by the time of the declaration. However, the declaration is only permitted after the end of the year in which the person would have turned 25.
Danger of death: If someone disappeared under specific life-threatening circumstances, they can be declared dead 1 year after the event.
Seafaring and Aviation: 6 months after the shipwreck or aircraft crash.
Military disappearance: 1 year after the end of the conflict, if the person went missing during a war or wartime conditions.

The court establishes the presumed time of death based on the most probable date of decease. If this date cannot be determined, the law provides statutory dates.

China

The Chinese law treats declaratory judgment of death and disappearance differently. Relevant provisions can be found in Section 3, Chapter 2 of the General Provisions of the Civil Law of the People's Republic of China enacted in 2017.
Where a natural person has disappeared for two years, an interested party may apply to a people's court for a declaration of absence of the natural person. The period of disappearance of a natural person shall be counted from the day when a person is not heard from, until the day the individual is recovered or located. If a person disappears during a war, the period of disappearance shall be counted from the day when the war ends or from the date of absence as confirmed by the relevant authority.
Where a natural person falls under any of the following circumstances, an interested party may apply to a people's court for a declaration of death:

The natural person has disappeared for four years;
The natural person has disappeared for two years from an accident.

Where a person has disappeared from an accident, and it is impossible for the person to survive the accident as certified by the relevant authority, an application for a declaration of death of the person is not subject to the two-year period.
In the event of contradictory applications for declaration, meaning that both an application for a declaration of death and an application for a declaration of absence of the same natural person are filed by the interested parties with a people's court, the people's court shall declare the death of the person if the conditions for a declaration of death as set out in this Law are met.
The Chinese law specifically talks about the return of the absentee. The validity of the previous declaratory judgment of death is not imperiled by the sheer fact of return. The absentee or interested party must apply for the revocation of the said declaratory judgment, then it can be annulled. The legal consequence of revoking declaratory judgment is essentially about restoration, i.e. the return of property and restoration of marriage. Chinese law restores marriage between the returned absentee and his or her spouse, providing that the spouse has not remarried or declared unwillingness of restoring marriage. This is quite unusual among the legal regimes around the world.

Germany

According to the German Presumption of Death Act, specific waiting periods must elapse before a person can be judicially declared dead:

General disappearance: 10 years after the end of the year of the last sign of life. This is reduced to 5 years if the person would have reached the age of 80 by the time of the declaration. However, the declaration is only permitted after the end of the year in which the person would have turned 25.
Disappearance at sea: 6 months after the vessel sank or the life-threatening event occurred.
Military disappearance: 1 year after the end of the year in which the war or armed conflict ended.
Aviation disappearance: 3 months after the aircraft crash or disappearance.
Other life-threatening danger: 1 year after the life-threatening situation has ended.

The court determines the presumed time of death based on the most likely date or specific statutory rules for each category.

India

Presumption of death is governed by sections 107 and 108 of the Evidence Act, which allows for presumption of death for a person missing for 7 years to be raised in appropriate proceedings before the court.

Ireland

If there is strong evidence a missing person is dead the coroner may request an inquest under Section 23 of the Coroners Act 1962. If the Minister for Justice grants the inquest then the person may be declared legally dead if that is the outcome of the inquest. As an alternative an application may be made to the high court; before November 1, 2019, the general position was that a person needed to be missing for at least 7 years before a person could be treated as dead in the eyes of the law, but exceptionally may be earlier if there is strong implication from the circumstances the person is dead. This meant that their next of kin were denied any bereavement-related entitlements under any pension, life insurance or social welfare scheme. Since November 1, 2019, when the Civil Law Act 2019, commenced, a court can make a "presumption of death order" if it is satisfied that the circumstances suggest that the missing person's death is either virtually certain, or highly probable. If such an order is made and not successfully appealed, it has the same status as a death certificate.

Italy

It takes ten years to declare a missing person dead. After ten years from someone's disappearance, a motion to declare the person legally dead can be filed in court.

Poland

Declaration of presumed death is stipulated in articles 29–32 of the Polish Civil Code and pronounced as a court judgment. In general, a period of 10 years is required to pass for a legal declaration to be made, with the following exceptions:

no one can be declared dead prior to the end of the year in which they turn, or would turn, 23 years of age;
the minimum time period is reduced to 5 years if the person would have turned at least 70 years old at the time of the declaration;
if it is overwhelmingly likely that the person would have been a victim of an air or sea disaster or any other "exceptional circumstances", the period of time of the disappearance is reduced to 6 months, however if the vessel is presumably lost, the time is counted from one year after what would have been the scheduled day of arrival, or from two years after its last known whereabouts;
if a person is reported missing under other life-threatening circumstances than the above, the time period becomes one year since the conclusion of the life-threatening incident.

A court's declaration of death comes into effect retroactively and is subject to legal consequences from before the date of the declaration, going back to the assumed date of death, as declared by the court.

Russia

According to article 45 of Civil Code of Russia, a person may be declared dead only by a court decision, on the following grounds:

They have been missing for 5 years
If the person disappeared under life-threatening circumstances, which made it likely that he or she died from an accident, that person can be assumed dead after 6 months
A military or civil person, who disappeared during a military conflict, can be declared dead no earlier than 2 years after the conflict is over

A legal date of death is considered to be the date when the court decision declaring person dead was made. If a person disappeared under life-threatening circumstances, the day of his or her actual disappearance may also be considered the legal date of death.
The declaration of death by the court has the same legal consequences as if the fact of death was proven:

Dependants of the person become eligible for the state pension
Assets can be inherited
If the person was married, the marriage legally ends
Personal obligations are terminated

If such decision was a mistake and the person later returns, the decision is nullified and the person becomes eligible to request most of his assets back. However, if the husband or wife of such person married again, the marriage will not be restored. His funds and securities, taken under bona fide circumstances, also cannot be requested back.

United Kingdom

England and Wales

Before 2013

Prior to 2013, English law generally assumed a person was dead if, after seven years:

There was no evidence that they were still alive.
The people most likely to have heard from them had no contact.
Inquiries made of that person had no success.

This was a rebuttable presumption at common law – if the person subsequently appeared, the law no longer considered them dead.
Otherwise, courts could have granted leave to applicants to swear that a person was dead. For example, an executor may have made such an application so they could have been granted probate for the will. This kind of application would only have been made sooner than seven years where death was probable, but not definitive, following an inquest. Such an application was specific to the court where it was made – thus separate applications had to be made at a coroner's inquest, for proceedings under the Matrimonial Causes and Civil Partnership Acts, for probate, and under the Social Security Act.