How long is a missing person deemed dead? How can the assets of a person who had been declared dead

Legal situation: 

Dear Lawyer, 

Since 2011, my spouse has been working as a sailor on a journey and has lost communication with his family. There is no information available about him. We each have a 14-year-old kid. My spouse has a separate property, which is a 300-square-meter plot of ground on which he constructed a house. My kid and I are currently residing in that home. I'd like to sell that house and return to my hometown to live with my birth parents. I heard that if a person goes missing for an extended period of time, they are deemed dead. So, how should the missing person's assets be handled? I would be grateful for your advice. Thank you very much!

FDVN’s opinion: 

Thank you for entrusting the FDVN Law Firm ("FDVN") with your consulting request. In response to your query, we have the following information to share after reviewing the legal regulations:

1. In which cases is a missing person declared dead by the Court?

According to Clause 1 Article 71 of the Civil Code 2015, 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:

“a) 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;

b) 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;

c) 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;

d) 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 in accordance with Clause 1 Article 68 of this Code.”

In your case, your spouse has been absent for almost five years. Because there is no evidence that your spouse is still alive, you have the right to ask a court to proclaim that he is deceased. The five-year time limit begins on the date the last information on such person is obtained; if the date of the last information cannot be determined, the time limit begins on the first day of the month following the month when the last information is received; if both the date and month of the last information cannot be determined, the time limit begins on the first day of the year following the year when the last information is received.

2. What are the procedures for requesting to declare a missing person dead?

According to Article 391 of the Procedural Civil Code 2015, a person with related rights and obligations has the right to file an application requesting a Court to declare a missing person dead according to the provisions of the Civil Code. Attached to the request application, a requester is required to submit documents, evidence to prove that a person requested to be declared dead falls into one of the cases according to the provisions of the Civil Code. 

Therefore, in case of requesting to declare a person dead, a requester needs to prepare a dossier and comply with the following procedures: 

Step 1: Submit a request application, which requests a Court to declare a missing person dead. A person with related rights and obligations needs to prepare a dossier with all the following papers, and documents: 

- A application requesting to settle a civil matter. This application is made according to Form No. 92-DS in Resolution 01/2017/NQ-HDTP. The applicant may type or hand-write the request application for settlement. 

- Notarized copy of ID/Passport of an applicant and a person requested to be declared dead.

- A document proving the relationship between an applicant and a person requested to be declared dead; Documents proving there are rights, and benefits related to a person requested to be declared dead. 

- Proof, evidence proving that a person declared dead falls into one of the cases as prescribed by the law. For example, evidence proving that such person dead, evidence proving that a requester notified, searched for (confirmed by press agencies, radio, television, etc.). If a decision declaring missing is issued by a Court before, a photo of such decision is required to submit. 

Step 2: Notify the search for a person requested to be declared dead.

Within 20 days from the date the request application is accepted, a Court will issue a decision notfying the search the information of a person requested to be declared dead. 

The contents of a notice include:

• Date of issuance of a notice (day, month, year);
• Name of a Court issuing a notice;
• Number and date of a decision declaring a missing person as deceased;
• Name and address of a person requesting the Court to issue a notice;
• Full name, date of birth or age, and last known address of a missing person;
• Contact information of a agency, organization, or individual if a missing person is aware of a notice or if anyone else has information about a missing person.

Within a period of 01 month, starting from the date the Court issues the search notice, this notice must be published in one of the central daily newspapers for three consecutive issues, on the Court's electronic portal, the provincial People's Committee's website (if any), and broadcasted on the central radio or television station three times within 03 consecutive days. The search notice period is 04 months, starting from the date of the first publication or broadcast.

Note: The expenses for publishing and broadcasting the search notice are paid  by a requester. 

Within the search notice period, if a requester withdraws the request or a person requested to be declared dead returns and informs a Court, a Court will decide to suspend the consideration of the request application. 

Step 3: The Court declares a missing person dead.

Within 10 days from the expiry date of the search notice, a Court must open a hearing to consider the request.

In the case of accepting the request, a Court will declare the person dead. In this decision, a Court will determine the date of death of that person and the legal consequences of declaring a person dead.

3. How can the assets of a person who had been declared dead be handled? 

According to the provisions in Clause 2, Article 72 of the Civil Code 2015, the assets relations of a person declared dead by the Court will be settled as if a person has already died; their assets will be settled according to the provisions of the inheritance law.

As a result, if your husband is certified dead by the Court, his assets will pass to his first-order heirs, which include the deceased person's spouse, children, father, mother, adoptive father, adoptive mother, biological children, and adopted children. If a person who has been pronounced deceased but is still alive returns, he or she has the right to ask the first-order heirs who got the inherited assets to return the remaining assets and their value. 

The above is FDVN's advising opinion on your consultation request based on legal regulations research. We hope FDVN's counsel is useful to you.

By Phan Đức Huỳnh - FDVN LawFirm

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