Suppose that a loved one has been missing for years, for no reason at all, and without contacting family or accessing any of his or her assets.  Sadly, this scenario is one that many families have had to confront in New York State.  This blog post addresses the steps that a missing loved one’s family members may wish to take in order to have their absentee relative declared deceased and to gain access to that person’s assets.

Estates, Powers and Trusts Law (“EPTL”) § 2-1.7 provides:

A person who is absent for a continuous period of three years, during which, after diligent search, he or she has not been seen or heard of or from, and whose absence is not satisfactorily explained shall be presumed, in any action or proceeding involving any property of such person, contractual or property rights contingent upon his or her death or the administration of his or her estate, to have died three years after the date such unexplained absence commenced, or on such earlier date as clear and convincing evidence is the most probable date of death (EPTL § 2-1.7[a]).”

To invoke EPTL § 2-1.7, a “petitioner must establish a continuous absence for three years, a diligent search, the lack of any satisfactory explanation for the absence and, during the absence, that there was no communication with the absentee” (Matter of Durso, NYLJ, June 24, 2015, at 23 [Sur Ct, Bronx County]; Matter of Bennett, 12 Misc3d 1154[A], *1-2 [Sur Ct, Suffolk County 2006]).  Proof of a diligent search is critical to any analysis involving EPTL § 2-1.7, as evidence of a person’s continuous absence for more than three years alone will not suffice (Matter of Sanchez, 22 Misc3d 1128[A], at *2 [Sur Ct, Nassau County 2009]).

As courts has explained, “[t]he burden of proof is on the party seeking such determination” (Matter of Mayer, File No. 2019-2355, Decision, dated June 8, 2021 [Sur Ct, Suffolk County]).  To carry that burden, a petitioner must establish that “a thorough and exhaustive search for the absentee” took place “as soon as his [or her] absence became known in the places and among the individuals from whom a party in search of the truth would be likely to inquire” (Matter of Klein, NYLJ, Jan. 22, 2015, at 33 [Sur Ct, Suffolk County]).  The “search should include the locations and places from which the last information of the absentee came, as well as those place[s] he [or she] may be inclined to visit or go based upon his [or her] habits, friends and associations” (id.; Mayer, supra).  “The proximity of the search in relation to the time of the absence is an important factor in determining its diligence and sufficiency” (id.).  Whether a petitioner can satisfy the burden of proof generally requires a hearing (Matter of Golden, NYLJ, Aug. 10, 2012, at 33 [Sur Ct, Kings County]).

Matter of Mayer illustrates the steps that an absentee’s relatives may need to take in order to have their loved one declared deceased (Mayer, supra).  In 2013, Robert Mayer (“Robert”) was married, had two children, and had close relationships with his wife and children (id.).  Robert also was a union electrician, who had a drug habit and was suspected of stealing wire and tools from his jobs and employer, respectively (id.).  On June 14, 2013, Robert left home for work, intending to return there later that day to plan for an upcoming Father’s Day celebration, and looking forward to a “much anticipated” family trip to Italy (id.).  However, Robert went missing, and none of his relatives and friends ever heard from him again (id.).  On June 15, 2013, Robert’s wife (a) called the Suffolk County Police Department to report a missing person; (b) organized searches for Robert; and (c) located Robert’s car at a Long Island Railroad station (id.).  Robert’s family did not expect to locate his car at a railroad station, since Robert “would never leave his car at the train station” (id.).  Based upon the foregoing, as well as the police department’s searches for Robert, the close relationships that Robert had with his family members, and the fact that Robert left assets of substantial monetary value behind, then-Suffolk County Surrogate Theresa Whelan (a) concluded, in 2021, that a diligent and exhaustive search had been made for Robert, whose absence was unexplained; and (b) declared Robert to be deceased as of June 14, 2016 (id.).     

For many reasons, the path toward having a missing relative declared deceased is not an easy one to travel.  However, EPTL § 2-1.7 and its progeny provide guidance for family members whose loved one goes missing concerning how to have their absentee relative declared deceased.