Declared death in absentia

The declaration of death is a judicial decision of a District Court, according to which a person is to be regarded as having died before the law.

Legal bases

Legal basis for the declaration of death is Germany's Disappearance Act ( VerschG ) and in Austria the declaration of death Act ( TEG ), both at the "Reich Law on the disappearance, the declaration of death and the determination of the time of death from July 4, 1939 " based and largely the same content are. For disputes with declarations of death, the process of voluntary jurisdiction in Germany ( § 48 para 1 FamFG, § 13 VerschG ) and apply in Austria, the process except disputes.

Presumption of death

In general, the death of a man is being held on the death certificate. However, in missing persons whose death can not be proven with certainty. With progressing time of disappearance there is a growing presumption of death; the declaration of death confirms this assumption.

Is lost, whose stay for a longer period is unknown, exist without that messages about whether he was still alive at this time or has died, provided that justified serious doubts about his life after the circumstances thus ( § 1 para 1 VerschG ). Are to obtain no news of the fate of the person concerned, justifies the adoption of a dormant within the meaning of VerschG only when messages would have been expected under the circumstances. This requires in particular in the cases of a possible " disembarkation " or " immersion " of the data subject to closer scrutiny. Lost is not, whose death on the circumstances, no doubt (§ 1 para 2 VerschG ).

If a declaration of death for this reason is not permitted, an entry in the register of deaths but not carried out, may be requested to determine the death and the time of death by court order. By declaration of death, the legal capacity but does not exit, but it establishes a rebuttable presumption of death entry ( § 9 para 1 VerschG ). For declarations of death and procedures for determining the time of death, the German courts have jurisdiction ( § 12 para 1 VerschG ).

With declaration of death can begin the probate proceedings in Austria. However, was the declaration of death wrong, a lifting of the declaration of death must be imposed. Then it is grossly unfair to continue the probate proceedings, although the testator is still alive.