Concept and Legal Framework of Presumed Death Due to Danger
Definition of Presumed Death Due to Danger
In German law, presumed death due to danger (Gefahrverschollenheit) refers to the specific circumstance in which a person is missing as a result of a special event characterized by mortal danger and has not been reached since. In contrast to general disappearance (§§ 1-6 Disappearance Act – VerschG), presumed death due to danger involves a direct connection to a specific hazardous event, such as a shipwreck, airplane accident, natural disaster, or acts of war. This concept plays a particular role in disappearance law, as well as in personal status and inheritance law.
Statutory Foundations
Disappearance Act (VerschG)
The legal basis for presumed death due to danger is the German Disappearance Act (VerschG). According to § 2 para. 1 VerschG, a person can be declared dead if they “were placed in bodily or mortal danger,” have remained missing since, and either the incident in question suggests a deadly peril or, after a certain period and after a completed exclusion procedure, there are no signs of life.
Distinction from General Disappearance
Presumed death due to danger always requires a specific and extraordinary danger, such as a ship sinking, airplane crash, or military engagement. General disappearance, on the other hand, only requires that there has been no news of a person’s life for a prolonged period—typically at least ten years (§ 1 VerschG). Presumed death due to danger allows for an expedited declaration of death and significantly shortens the otherwise applicable timeframes.
Requirements and Legal Consequences of Presumed Death Due to Danger
Requirements for Assuming Presumed Death Due to Danger
To declare a person missing and presumed dead due to danger, the following requirements must be met:
Concrete Hazardous Situation
It must be proven that the affected person found themselves in a situation that posed significant danger to life and limb. Typical scenarios include:
- Maritime or aviation disasters
- Natural disasters (e.g., earthquakes, floods)
- Hostilities, terrorist attacks, or armed conflict
Subsequent Unreachability (Disappearance)
The person must have been missing since the hazardous event, and there must be no reliable information regarding their survival. According to § 2 para. 2 VerschG, the duration of unreachability is only one year from the time of the presumed danger.
Application and Court Proceedings
An application for a declaration of death based on presumed death due to danger may be submitted to the locally competent district court. Those entitled to apply include individuals whose rights or obligations are influenced by the declaration of death, such as spouses, relatives, or potential heirs.
The court diligently examines:
- Proof of the Hazardous Situation
- Credibility of continued disappearance
- Necessary investigations under § 4 VerschG (Exclusion of other possibilities)
Afterwards, the court decides on the declaration of death. The time of death, in accordance with § 9 para. 2 VerschG, is set at the time of the hazardous situation or at the point when, based on the circumstances, death is to be assumed.
Legal Consequences of the Declaration of Death in Presumed Death Due to Danger
With a court declaration of death due to presumed death by danger, the person is legally regarded as deceased, which entails numerous legal consequences:
Inheritance Law Effects
With the declaration of death, the assets of the missing person are transferred to the heirs; the inheritance case is deemed to have occurred. The heirs can settle estate matters, pay debts, and take ownership of assets.
Effects on Marriage and Family Law
With the declaration of death, any existing marriage or civil partnership ends. From this point on, the individual is considered deceased in relation to the spouse or civil partner for the establishment of a new marriage or partnership.
Effects under Insurance and Civil Status Law
Life insurance benefits may be paid out following a declaration of death. The death is also officially registered in the civil status registers.
Reversal and Aftereffects
Annulment of the Declaration of Death
If the declaration of death was made in error, for example because the missing person is still alive or later reappears, § 13 VerschG provides for the annulment of the declaration by court order. The legal effects of the declaration of death are revoked retroactively, as far as possible and as legally provided in the individual case (§§ 14 ff. VerschG).
Protection of Third Parties
Good faith rights acquired by third parties based on the declaration of death (e.g., inheritance, remarriage) generally remain in effect unless gross negligence or bad faith is involved. Legal protection of trust in the validity of the declaration of death is thus guaranteed by law.
Significance of Presumed Death Due to Danger in International Law
In exceptional cases under international law, such as in war and disaster zones, international treaties and humanitarian organizations may provide extended regulations for cases of presumed death due to danger. Numerous legal systems, such as Switzerland (Art. 35 ZGB) or Austria (§§ 62-66 AußStrG, §§ 11ff. TEG), have comparable provisions.
Summary
Presumed death due to danger is a significant legal institution that enables an early and pragmatic declaration of death in connection with hazardous situations. Through binding procedural rules, the German Disappearance Act provides legal certainty for both relatives and third parties and ensures an appropriate handling of cases in which a person disappears due to a dangerous situation and their fate remains unresolved.
Frequently Asked Questions
What legal requirements must be met for the court to determine presumed death due to danger?
Under German law, § 284 of the German Civil Code (BGB) provides for the possibility of declaring a person dead if they have “disappeared in danger of having lost their life,” i.e., if presumed death due to danger applies. Several legal requirements must be met for this: First, the person must have actually disappeared in circumstances coinciding with a specific life-threatening danger (e.g., sinking of a ship, plane crash, natural disaster, armed conflict). Second, the disappearance must be such that no news exists of the person’s fate or whereabouts, and the overall circumstances specifically indicate that the person most probably died. Third, the facts presented must stand up to judicial review in order to justify a plausible assumption of death. The burden of proof lies with the applicant, who must present and substantiate all necessary facts and evidence to the court. Mere absence, without the presence of mortal danger at the time of disappearance, does not legally suffice for presumed death due to danger.
Who is entitled to apply for the determination of presumed death due to danger?
According to §§ 1, 2 of the Disappearance Act, persons entitled to apply for a court determination of presumed death due to danger are, above all, those whose rights or interests are directly affected by the determination. This typically includes spouses, children, parents, and other legal heirs of the missing person. Creditors or other persons who can prove a legal interest—in the context of inheritance, insurance claims, or maintenance—are also entitled to submit an application. The legal representative (such as a guardian) of the missing person also has this right. The responsible district court (probate court) checks both the admissibility and merits of the application and may request further information or evidence if necessary.
What court procedures and examinations are provided for the determination of presumed death due to danger?
The judicial determination of presumed death due to danger occurs in the so-called disappearance procedure conducted by the competent district court according to the Disappearance Act (VerschG). After receipt of the application, the court usually requests detailed information from the applicant regarding the last known whereabouts, circumstances of disappearance, and other relevant facts. Depending on the case, witnesses are interviewed, reports from authorities, police investigation files, missing person alerts, and international sources are obtained. The court carefully examines whether there was a concrete mortal danger at the time of disappearance and whether there are realistic possibilities that the person could still be alive. After completion of the investigations, the court issues a decision, the legal force of which can be extended through public announcement. The determination is constitutive and is binding in legal transactions (e.g., for inheritance proceedings).
What are the legal effects of the court’s determination of presumed death due to danger for inheritance and asset matters?
The court’s determination of presumed death due to danger has extensive inheritance consequences. It means that the person is henceforth considered legally dead (§ 9 para. 1 VerschG). Statutory succession thus takes effect or testamentary dispositions (wills) become effective as if the death were proven. All proprietary consequences of death—especially estate settlement, issuance of certificates of inheritance, re-registration of land and registry rights, and the assertion of life or accident insurance claims—can take place. However, in contrast to a formal declaration of death, the determination of presumed death due to danger remains contestable and may be revoked under the conditions of § 12 VerschG, for instance if the person turns out to be alive.
What are the differences between presumed death due to danger and general disappearance in law?
Legally, a distinction is made between general disappearance (under § 1 VerschG) and presumed death due to danger (under § 2 VerschG, § 284 BGB). General disappearance requires that someone has been absent without news for a long time (usually ten years), with no specific hazardous circumstance at the time of disappearance. Presumed death due to danger, in contrast, requires the sudden disappearance of a person in direct connection with a specific, acute life-threatening situation (e.g., shipwreck, armed conflict). The period for a court determination is much shorter for presumed death due to danger—often a period of six months after the last sign of life suffices, provided the hazardous situation is sufficiently documented. The requirements, procedure, and burden of proof are accordingly different, with presumed death due to danger typically allowing for a more rapid judicial determination.
Can a determination of presumed death due to danger be revoked, for example, if the person reappears?
Yes, the determination of presumed death due to danger can be revoked at any time upon application if new facts become known demonstrating that the person who was considered missing is indeed alive (§ 12 VerschG). If the declared-dead person reappears alive or is unmistakably identified as living, the court will retroactively annul the determination. Any legal effects resulting from the declaration of death—such as inheritance or insurance payouts—must, as far as possible, be reversed (§ 13 VerschG). However, rights acquired by third parties in good faith remain especially protected by law to ensure legal certainty for subsequent transactions.
