The procedure for declaring a citizen dead in court

The death of a citizen is confirmed by official documents, and when this is not possible, an application for recognition as deceased must be submitted. And then, after the court decision comes into force, the registry office will issue a death certificate.

Official death records are necessary for a number of civil rights. This includes registering an inheritance, receiving a survivor’s pension, disposing of the spouses’ common property, etc. Therefore, the law has provided for a special procedure for going to court on such an issue - in the order of special proceedings.

Recommendations and nuances for preparing a claim and documents regarding declaring a citizen dead are posted below. Additionally, we recommend taking into account cases when you can submit an application to establish the fact of death. You can address your questions to the site’s duty lawyer.

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Declaration of 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:

1. 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.
2. The soldier disappeared during the hostilities. You can go to court 2 years from the end of hostilities.
3. 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.

Judgment declaring someone dead

A court decision that has entered into force declaring a person dead will become the basis for making an appropriate entry in civil status acts and for relatives to receive a death certificate. And, therefore, the onset of legal consequences for interested parties, as in the case of the death of a citizen (inheritance, divorce, etc.) The day of death will be either the date the court decision enters into force, or (at the discretion of the court) the date of the presumed death of the deceased.

Many relatives view filing an application for recognition as deceased with a negative assessment and fear, however, this is necessary for a number of legal consequences to occur.

If a person declared dead suddenly turns up, information about him will be received from his place of residence, and his legal status will be completely restored. The representative of such a citizen, himself, his relatives, creditors and other interested parties, have the right to apply to the court to cancel the decision to declare him dead. And the citizen himself has the right to demand from any person the return of his remaining property. Therefore, filing an application for recognition as deceased should not be treated with superstition and unnecessary fears - there is a way to return.

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:

1. Heir by will or by law - to open the inheritance remaining after the disappearance of the missing testator.
2. 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.
3. 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.
4. 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.
5. 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

Consequences of declaring a citizen dead

After the announcement of the judicial act, legal consequences arise, as with ordinary biological death. The only difference is that if the subject recognized as dead turns up, then the court decision can be canceled.

Based on a judicial act, relatives must receive a death certificate. After which they can perform all the necessary actions.

For example, deregister a person, submit an application to a notary for entry into rights, apply for a subsidy, or register a remarriage. If there is a judicial act, the parent’s permission to leave the child outside the country will also not be required.

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.

Sample application for declaring a citizen dead

When filling out an application, it is recommended to follow the rules established when filing claims. We offer a general example when a citizen is declared dead due to the period of absence from his place of residence.

In _______________________ (name of the court) Applicant: _______________________________ (full name, residential address,

telephone, e-mail) Interested person: ____________________ (full name, address of residence,

if known: date and place of birth, place of work,

one of the identifiers - SNILS, INN, series and passport number,

driver's license, car license, telephone, e-mail)

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:

1. Preparation of evidence.
2. Filing a claim.
3. Submitting documents to the court.
4. Attending a court hearing.
5. Obtaining a court decision.
6. 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:

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

Rules for going to court

In order for the court to accept an application for proceedings and schedule a court hearing, it is important to comply with procedural requirements. So, the applicant may be persons whose rights and obligations depend on confirmation of the death of a citizen. Close relatives - wife, mother of a child of a person recognized as deceased, possible heirs, an organization that issued a power of attorney to the citizen to carry out certain actions, a bank. The prosecutor and authorities (state and local self-government) can apply to protect the rights of other persons - for example, in the interests of minor citizens.

The applicant sends a detailed application for recognition as deceased, evidence of the presence of relevant circumstances, and an indication of why such an application was filed (purpose) to the court at his place of residence.

If the applicant did not indicate his legal interest (why he went to court) and did not state the grounds on which the citizen should be recognized as dead, the application is left without progress.

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).

Grounds for recognizing the fact of death

The criteria by which the court can come to a conclusion about declaring a person deceased are clearly defined in the Civil Procedure Code and the Civil Code of the Russian Federation. So, if nothing is known about a person for more than five years, this is a good reason for declaring the person dead. At the same time, in judicial practice there are a lot of nuances that affect the outcome of the case. So, the question of what date to calculate the five-year period is ambiguously resolved? What evidence does the applicant need to provide? Who can ask the court to establish the fact of death?

All circumstances are assessed on a case-by-case basis. Sometimes two similar missing person situations are resolved in completely different ways. Let's look at examples.

Example No. 1. From the country of the Near Abroad Guseinov I.I. came to Russia to earn money (the so-called guest worker, of which there are many now). He transferred money monthly to his family, which consisted of elderly parents, several children and his wife. Since July 2011, he stopped supporting his family and stopped calling. The partner with whom he left for Moscow, long before his friend stopped showing signs of life, left Russia and could not give any information about the possible place of residence of I.I. Guseinov. No one else knew anything about the missing person. It was impossible to contact the phone from which he called home: it was disconnected, and over time the number began to be used by an unknown woman, who claimed that she had bought a SIM card in the official store of a cellular operator. Guseinov's father I.I. unsuccessfully went to the capital, where he was unable to find the slightest information about his son. In July 2021, he filed an application with the court.

Example No. 2. In January 2010, Samoilov A.A., engaged in cattle breeding activities on a farm located in the Rostov region, took meat to the market in a neighboring town for sale. Usually the implementation took several days, during which Samoilov A.A. I rented an apartment where I spent the night and traded at the city market during the day. Relatives of Samoilov A.A. knew about the location of his temporary housing, they constantly called him by cell phone. On the eighth day of absence of Samoilov A.A. at home, and also due to the cessation of calls, his family came to the city where he was selling goods, but there was no one in the rented apartment. Samoilov's wife A.A. filed a wanted report with the local police department, from where for a long time they constantly made requests to nearby cities, regional and city hospitals, the Federal Migration Service, etc. At intervals of six months, requests on the initiative of the wife were repeated. Family members visited all the numerous relatives in several cities of the country, where they found out in detail the last day when Samoilov A.A. contacted and corresponded with them, while the answers were recorded in writing and on a voice recorder. The results of joint efforts over many years were disappointing: Samoilova A.A. was nowhere to be found.

In these two seemingly identical situations, the court is likely to make different decisions. In the first situation, due to the incompleteness of the search activities carried out, the court will refuse to recognize the citizen as dead. Thus, the relatives really made an effort to search for A.A. Guseinov, but the procedure for the “official” search by law enforcement agencies was not followed: after all, the person being sought could simply cross the border for his own personal, unknown reasons, and then settle his life in another state. Since no search request was filed, information about crossing the state border, being held in prison, or being in medical institutions (including closed ones) was not checked.

In the second example, along with the active search efforts of relatives, the search procedure by the police and other government agencies was followed. In this regard, the court has undeniable evidence of the impossibility of establishing the location of Samoilov A.A., receiving any news about him, etc. It is more likely that the spouse's application will be granted by the court.

Civil law provides for cases when the five-year period required to be declared dead is reduced to two or even six months. So, if there is reason to believe that a person disappeared during hostilities, then the period from the end of hostilities must be at least two years. If a person was in an environment indicating mortal danger, at least 6 months must pass. Of course, all circumstances should be indicated in detail in your application.

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:

1. Go to court to cancel the court decision.
2. Contact the registry office to cancel the record of his death.
3. Reclaim your property from the citizens who received it.
4. 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.

Missing person

The court may recognize a person as missing when relatives have no information about him, but there are no compelling reasons to consider him dead.

To be declared absent, the absence of information about the missing person for 6 months is sufficient, regardless of the circumstances that preceded it. Of course, such a period is not enough to dispose of the property, but the court can take measures to preserve it. Having appointed a person responsible from among the relatives, the judge has the right, if maintenance costs are necessary, to allow the sale of part of the property to cover the costs of running the household of the absent citizen. Subsequently, if the missing person does not show up for a long time, you can apply for recognition of the fact of death.

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.

How to recognize a person as dead through court

This procedure takes place exclusively in court. In order for the process to begin, appropriate circumstances must occur.

The application is submitted to the district court (Article 276 of the Code of Civil Procedure of the Russian Federation):

• at the last registered address of the missing citizen;
• at the location of the plaintiff.

Algorithm for declaring a citizen dead:

1. Collection of evidence.
2. Preparing an application.
3. Payment of duty.
4. Submitting documents to the court.
5. Trial.
6. Receiving a court decision.

Required documents

The statement of claim must be accompanied by documents confirming the applicant’s involvement in the missing citizen.

List of documentation:

• the applicant's identity card;
• marriage/birth certificate;
• certificate from place of work;
• extract from place of residence;
• evidence of life-threatening circumstances;
• documents on the conduct of search activities;
• evidence of the end of hostilities;
• fee payment receipt;
• application to call witnesses;
• evidence of circumstances.

When filing a claim, you must prepare adequate evidence of the stated facts. These include:

• documents from the police about the search for the missing person;
• official messages from the Minister of Defense and the President of the country about the cessation of hostilities;
• Hydrometeorological Center data on a specific natural disaster.

Statement of claim to declare a citizen dead

The document is submitted in writing.

The application must contain:

• name of the district/city court;
• information about the applicant (registration address, full name);
• document's name;
• circumstances of the case;
• final petition;
• list of attached papers;
• proof of payment of the fee;
• date, signature of the initiator of the process.

Such cases are heard with the mandatory participation of a prosecutor. The application must indicate why the establishment of a legally significant fact is required. Additionally, you will need to provide evidence of search activities that led to the conclusion that it was impossible to find the person.

When filing an application, you also need to take care to call witnesses who will help establish the approximate date of the person’s disappearance.

Sample statement of claim

Sample statement of claim to declare a citizen dead

Applicant's expenses

A mandatory cost item is state duty. The fee for special proceedings is 300 rubles . However, state duty is not the only type of expense.

Additional expenses include:

• drawing up a statement of claim (from 1,500 rubles);
• representation in court (RUB 30,000).

What to do after the trial is over

If the participants in the trial do not file an appeal, the court decision will enter into force 1 month after its announcement.

After which the applicant will be able to obtain a death certificate. If such a document is available, the heirs will be able to take ownership of property rights.