The Return of the Wandering Spouse: Undead but no Zombie
Update: read below….
Anderson blogs about an odd Ohio case in which a man who had been declared dead because he’d gone missing turned up and asked that the declaration of death be set aside. The Ohio court ruled that, nope, he had three years to contest the death and had not done so, and so, despite the evidence to the contrary, he was still dead.
That’s one tough presumption they have there.
This raised the question in Anderson’s mind whether such a ruling was peculiar to Ohio. I’m not sure, but it couldn’t happen here. Mississippi’s presumption of death statute has a really nice old school sound to it:
Any person who shall remain beyond the sea, or absent himself from this state, or conceal himself in this state, for seven years successively without being heard of, shall be presumed to be dead in any case where his death shall come in question, unless proof be made that he was alive within that time. Any property or estate recovered in any such case shall be restored to the person evicted or deprived thereof, if, in a subsequent action, it shall be proved that the person so presumed to be dead is living.
Miss. Code. Ann. § 13-1-23. What this means is that the man turning up causes the presumption to entirely disappear. There are two odd wrinkles, though. If a purchaser buys the property from the “widow” in reliance on a decree that the wandering spouse is dead, the property is not restored (what about a constructive trust on the proceeds of sale, I ask myself). And, if the presumed widow remarries (with or without a decree, which she can do), the return of the wandering spouse renders the marriage void ab initio, that is, void from the moment the marriage occurred (but the formerly presumed widow can’t be prosecuted for bigamy. The status of the children of the new marriage was the subject of much teeth gnashing in a dissent by Justice Griffith on this issue).
by Scott Simon on this mornings Weekend Edition pretty much re-balances the equities on the Ohio story.
Yes, it seems completely unreasonable for the presumption to survive conclusive proof it wasn’t so. But, according to Simon, it turns out that the wandering man here wandered off on $23,000 of child support, and the purpose of the ruling he was presumed dead was that the children got access to a Social Security death benefit, that would have had to be repaid if he were not dead.
Something sounds somewhat odd about the result here. Without looking anything up, I wonder: will the federal government really accept the state court’s ruling?