Recognizing a citizen as dead (in court): procedure, grounds, deadlines, sample statement of claim

The unclear status of a person according to documents, while he is actually dead, or there is every reason to recognize his death, can affect the life of his family and his loved ones. Therefore, in such a situation, relatives need to submit an application to recognize the person as deceased and obtain a certificate of this fact.

In the future, the family will be able to discharge him to his residence address and carry out other operations. How to recognize a missing or deceased relative if there is no news about him for a long time, it is impossible to find him using any source of information?

1 Basic concepts
2 Timing
3 Benefits
4 Procedure
5 Statement
6 Making a decision

It is worth remembering that this procedure is complex and responsible; if the relevant authorities document this fact, they will need to check everything carefully, eliminating any possibility of error. Most often, recognition of a citizen as deceased is carried out through the court; a statement for the trial can be made by both the wife, child, parents, and other authorities.

ATTENTION! The recognition procedure must be fulfilled in accordance with all legal requirements, otherwise relatives may have problems, including with inheritance.

When filing an application with the court, family members should receive information from an experienced lawyer about how the procedure is performed and what the consequences may be. If relatives go to court and deliberately provide false information about a person who has gone missing or simply does not contact them for a long time, punishment for deceiving the court may follow.

Judicial practice knows many cases when relatives try to take possession of the property of a missing person in this way . Therefore, a whole procedure has been developed to recognize the fact of a person’s death.

Recognition of a person as dead - what is it?

Declaring a person dead is the establishment of a legal fact. Unlike biological death, in this situation there is no body of the deceased. Therefore, recognition as dead is rather an assumption.

The person is absent from his place of residence, there is no contact with him, his relatives do not know where he is.

In accordance with Art. 45 of the Civil Code of the Russian Federation, the possibility of recognizing a citizen as deceased appears in the following cases:

A person has disappeared in a situation in which it can be assumed that he died from an accident. The process can be initiated after 6 months.
The soldier disappeared during the hostilities. You can go to court 2 years from the end of hostilities.
In other cases. 5 years after the citizen’s information was last received.

The law does not provide for the possibility of going to court without sufficient grounds. A court decision is necessary to obtain a death certificate. As a result, all the consequences that biological death entails arise.

Basic Concepts

A citizen may be declared dead or missing if there is no information for a long time. These are two different statuses with important differences for legislation.

When a person has disappeared, his whereabouts are unknown for a long time, he is declared missing. But for society, for the law, he is not dead, he is considered alive. All his civil rights, including property rights, are preserved. N can be considered missing for a year or three.
The situation for the legislation is completely different if the missing person is declared dead even without his body being discovered. This procedure can be carried out after a person has disappeared during a natural disaster. A citizen may also be declared dead if he disappears after a shipwreck. This status is of great importance for legislation; it will affect the life of the family.

Proper plaintiff

Only an interested person can go to court.
The plaintiff must indicate the reasons for going to court in the statement of claim. The proper plaintiff is:

Heir by will or by law - to open the inheritance remaining after the disappearance of the missing testator.
Guardians, trustees, adoptive parents of a child of a disappeared parent - for the adoption of a child. You can register for adoption in a situation where the parents are deceased, unknown, or deprived of parental rights for more than 6 months. Therefore, a guardian will not be able to adopt a ward whose parent is missing without a death certificate.
Guardians, trustees, foster parents, guardianship department, parents, spouse - to assign a pension for the loss of a breadwinner. Disabled dependents of the deceased have the right to a pension. This could be children, parents or spouse.
The owner of the property where the missing person is registered - to remove him from the registration register. Deregistration can only be done with the consent of the person registered or through the court. If there is a death certificate, the migration service deregisters the person without additional documents.
Spouse - to end the marriage. If there is a death certificate for the missing husband, the wife is considered a widow. This means she can remarry without filing a divorce.

Statement of claim for recognition of property rights by inheritance

How to refuse an inheritance after 6 months? Step by step order

Legal significance of the court decision

A decree declaring a citizen dead is the basis for the issuance of a death certificate by the civil registry office. The day of death will be considered the date of the court decision or the moment of the emergency that may have claimed the life of the missing person.

A certificate obtained on the basis of a court decision entails the same consequences as the biological death of a citizen - all legal relations and acts of legal significance concluded with him are recognized as annulled: the marriage is terminated, the employment contract is terminated, the right of ownership of personal property is subject to transfer to the heirs, etc.

Establishing the fact of the death of the testator often becomes a stumbling block in the inheritance process and, if it does not prevent the receipt of the property of the deceased, it significantly complicates the procedure, causing the deadlines established for this to be missed. The result is numerous lawsuits with unpredictable outcomes and the risk of loss of inherited property. The lawyers of the ros-nasledstvo.ru portal will help prevent this. Experienced specialists provide introductory consultations free of charge and resolve complex issues in the field of inheritance law with further cooperation.

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Grounds for declaring a person dead

To recognize a citizen as dead in court, the following grounds are necessary:

it is impossible to establish the citizen’s current place of residence;
there is information about the person’s last permanent place of residence;
he has been absent from his last place of residence for at least 5 years (if he disappeared during a military conflict - 2 years, if he disappeared in an emergency situation - 6 months);
the person who applied to the court has an interest in recognizing the missing person as dead;
there were substantive legal relations between the applicant and the missing person (the missing person financially supported the plaintiff and bequeathed property to him);
The applicant took measures to search for the missing citizen.

Appeal to the court is possible only if all the listed grounds are present.

Step-by-step procedure in court

It is not difficult to recognize a missing person as dead through court.
It is necessary to prepare evidence of his absence from his place of residence and invite witnesses. The trial process takes from 2 to 3 months. Procedure:

Preparation of evidence.
Filing a claim.
Submitting documents to the court.
Attending a court hearing.
Obtaining a court decision.
Contact the registry office.

An application to declare a citizen dead must be submitted to the district or city court at the place of his last registration or at the place of residence of the interested person.

In accordance with Art. 262 of the Code of Civil Procedure of the Russian Federation, cases of declaring a citizen dead in court are considered in accordance with the procedure of special legal proceedings. Therefore, there is no need to include a defendant in the claim.

List of documents

Before going to court, you must prepare the following documents:

plaintiff's civil passport;
a document confirming the relationship with the missing person (birth certificate, marriage certificate);
an extract from the house register;
certificate from the place of work;
documents from the Ministry of Internal Affairs on the search for a citizen;
receipt of payment of state duty (300 rubles).

The following must be invited as witnesses:

friends, relatives, acquaintances;
colleagues;
district police officer

In order to go to court earlier than after 5 years, it is necessary to prepare evidence that the citizen disappeared during hostilities or in a situation that threatened his life.

Example. Milana went to work in the morning. At 10 o'clock that day, the building where her office was located collapsed due to a gas pipeline accident. The woman's body was not found. But footage from a video camera located across the street shows that she entered the building that day. There was no information about her for 6 months. Relatives went to court and declared her dead.

In this situation, the following was added to the evidence:

a certificate from the Pension Fund confirming Milana’s employment in an organization located in this building;
video footage of her entering the building;
testimony of witnesses who explained that the woman no longer came home and did not contact her relatives.

Since the collapse of a building can be regarded as a situation that threatened life and health, you can go to court to be declared dead after 6 months.

One of the key pieces of evidence is data from the Ministry of Internal Affairs that the missing citizen was put on the wanted list, but the search efforts did not produce results. You can also attach to the claim documents about the refusal to initiate a criminal case regarding the disappearance of a person.

Sample claim for declaring a citizen dead

The claim must contain the following information:

name of the court;
plaintiff's details;
document's name;
information about the disappearance of the missing person;
search data;
information about the reasons for going to court;
reference to the law;
claim;
petition to call witnesses;
list of documents;
date and signature.

Sample claim

Judgment

To make a decision, the court examines the evidence presented, hears testimony from witnesses and makes requests to the competent authorities:

to Rosreestr - about the presence of real estate in the property of the missing citizen and transactions with it during the period when he was considered missing;
in the Ministry of Internal Affairs - about the existence of a search case;
to medical organizations (polyclinic at the place of residence, drug treatment and psychiatric dispensary) - about whether the missing citizen sought medical help during the specified period, or whether he is undergoing inpatient treatment;
in the registry office - whether an act record of the death of the missing person, registration of marriage or birth of a child was made during the specified period;
in the Pension Fund of the Russian Federation - whether the missing person made insurance contributions to the Pension Fund of the Russian Federation during the specified period, and whether he is a recipient of pensions or benefits;
in the Federal Migration Service - where the missing citizen is registered;
to the local administration - is there information about the actual place of residence of the missing person.

Based on the information received, the court satisfies the plaintiff’s demands or refuses to satisfy them. A negative court decision can be appealed within 30 days from the date of issuance.

If there are no objections, the decision will take effect after 30 days.

Obtaining a death certificate

After the court decision enters into legal force, the plaintiff must register the fact of death in the registry office and obtain a death certificate. The state fee for issuing a certificate is not paid.

Consequences of declaring a person dead

The date of death of a citizen is considered to be the date the court decision enters into legal force. But in a situation where a person disappeared under circumstances that threatened his life, the court may set the date of death as the day of disappearance.

From this moment on, consequences similar to those of biological death occur:

The inheritance opens.
A trustee is appointed for the property (if necessary).
The child is placed under guardianship or in a foster family (if the other parent is absent).
A survivor's pension is assigned (at the request of the dependent or his legal representative).
The marriage union is considered terminated.
The citizen is deregistered (at the request of the heirs or the owner of the apartment).

Statement

The court may view the absence of important information negatively. In the text of the statement of claim, the applicant indicates his data and who he asks to be declared dead.

It is necessary to indicate the degree of relationship with the missing person, joint residence at the address (indicate the address). Then the circumstances under which the person disappeared are described in detail and accurately. Evidence of the event that occurred, as well as evidence of search attempts made, is attached.

What documents should be attached to the application so that it has weight for the judicial authorities? The papers may be different, depending on the circumstances. The following documents are required for the trial:

identification;
receipt for state duty;
marriage certificate, birth certificate of children (if one of the spouses is missing);
confirmation of relationship with the deceased will be required;
confirmation that the missing person was in dangerous conditions in the last minutes of his life.

It is recommended to collect as much evidence as possible of a person's possible death if it is necessary to declare him dead. You can provide the court with video and audio recordings, photographs, newspaper clippings about disasters - all data that indicates a possible death.

Arbitrage practice

As practice shows, courts satisfy claims to declare a citizen dead if he was previously put on the wanted list or was declared missing.

Example. Irina went to court to declare her brother dead. In the spring of 2002, the man left to work. Over the course of 6 months, he sent 2 letters to his mother. There was no more information about him. Irina needs recognition as deceased to formalize her mother’s inheritance, since she and her brother are first-degree heirs. A search case was opened, but the search yielded no results. The authorized bodies do not have information about the man. The court satisfied the sister’s demands (Decision of the Yashaltinsky District Court of the Republic of Kalmykia dated February 26, 2021 in case No. 2-45/2019).

If the Ministry of Internal Affairs provides information that a search case has not been opened, then the court is guaranteed to refuse the plaintiff.

Example. Valentina went to court to declare her son dead. She explained that she needed this for her own peace of mind. There has been no information about my son for 10 years. His location is unknown and he has not been in contact. All authorized bodies confirmed the information that the man did not undergo treatment, did not buy real estate, or was officially employed during the specified period. But the court refused to satisfy the demands, since a search case was not opened (Decision of the Oblievsky District Court of the Rostov Region dated November 17, 2021 in case No. 2-420/2016).

What documents need to be collected?

In this case, it is not a lawsuit that is filed with the court, but an application to declare the person dead. The claim cannot be used here, since there is no fact of dispute, and the case is being considered as a separate proceeding.

In addition to the statement, you need to collect evidence that the missing person can be officially recognized as dead. It could be:

a police investigation has been opened. No one will give you the case itself, so you need to contact the investigator who is conducting it and ask for a certificate/extract or other form of documentary evidence;
confirmation of the departure of the missing person to a military conflict zone, as well as confirmation that hostilities have officially ended;
if a person disappeared during an accident or natural disaster, then you need to set out the circumstances of what happened, as well as provide confirmation of this fact. For example, a certificate from the traffic police about an accident, an official letter from the Hydrometeorological Center stating that a natural disaster occurred at the specified time.

Witness testimony may be used in court, but it must be remembered that lying during a hearing is a criminal offense.

Sample application to the court to declare a person dead:

Life situations

Sometimes when a citizen is declared dead, more complex situations arise. Let's take a closer look.

What to do if the person returns?

In practice, such situations are not uncommon. Relatives stop maintaining contact, and in order to resolve property surveys, a loved one is declared dead. As a rule, he learns about this when applying to the Pension Fund to apply for a pension.

If a citizen returns to his place of residence and finds out that he has been declared dead in court, then he must:

Go to court to cancel the court decision.
Contact the registry office to cancel the record of his death.
Reclaim your property from the citizens who received it.
Cancel trust management (optional).

In accordance with Art. 302 of the Civil Code of the Russian Federation, it will not be possible to reclaim property if it is cash. Additional complications arise with regard to housing. If the new owner received ownership of the apartment more than 3 years ago, then the returning citizen cannot reclaim it.

How to cancel a decision to recognize a citizen as dead?

A court decision can only be overturned through a judicial procedure. To return property, the returning citizen must initiate legal proceedings.

The proper plaintiff in the process can only be the missing person himself, the prosecutor's office or the guardianship authority.

The citizen must attach the following information to the application:

a copy of the work book (if officially employed);
birth certificate of the child (if the child was born and registered during the disputed period);
extracts from authorized bodies on registration, transactions completed during the disputed period.

As a result, the court overturns the court's decision to declare him dead.

How to appoint a trustee for the property of a person declared deceased?

Since when a court decision enters into legal force, a citizen’s inheritance opens, the notary can appoint a trustee.

To do this, the heirs or the executor of the will must declare the need to ensure safety. The trustee may be an heir, an executor of the will, or another individual or legal entity.

Trust management is necessary if the property includes:

stock;
securities;
company;
share in LLC;
real estate objects.

A trust management agreement is concluded with a notary. 6 months after the court decision enters into legal force, the contract passes to the heirs of the deceased.

The trustee receives compensation from the estate for the performance of duties. The function of the administrator is to preserve and increase the property of the deceased. Every 6 months the manager must provide a report on the results of activities.

What if the “dead” turns out to be alive?

In this case, everything should return to normal. The rights and obligations of the deceased, who turned out to be alive in fact, return to him. For example:

if the marriage was dissolved due to the fact that the person does not exist, it is restored, but only at the request of the spouses;
property that was divided between the heirs returns to the property of the testator. If it was declared escheat, then it is either returned or the state pays equivalent compensation;
the citizen is restored to parental responsibilities.

All obligations to such a citizen are also returned in full.
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Lawyer's answers to frequently asked questions

I want to recognize my mother as dead. But the Ministry of Internal Affairs closed the investigation. To go to court, does it need to be open?

No. The main thing is that a search case is opened from the very beginning.

The father was declared missing in 1997. My grandfather died a month ago. To receive his inheritance, you need to recognize your father as dead. Is it possible to do this so many years later?

The law establishes the minimum period required to declare a citizen dead. It is 5 years. The maximum period has not been established. Therefore, you can go to court.

Who should be indicated as an interested party in a claim to declare a citizen dead?

The Civil Code defines a person interested in recognizing a citizen as dead as a plaintiff. That is, there is no need to indicate additional interested parties.

In 2000, my ex-husband and I filed for divorce. If a common son. He went missing in 2003 and has not been found to this day. There are documents from the Ministry of Internal Affairs, there was a search case. I filed a claim, but the court rejected it because I am not an interested party. What should I do to ensure that my child receives an inheritance?

File a claim on behalf of your minor son. If the son has reached 18 years of age, he must go to court on his own.

Mother left home in 2009. A search case was opened. The initiation of a criminal case was refused (no one threatened, there were no debts). Where should I go to declare her dead?

A citizen can only be declared dead through a court. Submit an application to the district court at the place of last registration of the mother.