Article 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n)
Article 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n)
Notes:
1) Definition.
a. Presumption of death – refers to a judicial declaration presuming that an absentee is dead because of prolonged years of absence, and it is unknown whether the absentee is dead.
2) Rules on presumption of death.
a. Time periods. The following periods are required prior to a judicial declaration of presumptive death:
A. Ordinary Absence
(1) 10-year absence – for purposes of opening succession;
(2) 7- year absence – for all other purposes;
(3) 5-year absence – for purposes of opening succession absentee who disappeared after the age of 75 years (i.e., 76 years old and above);
B. Extraordinary Absence
(1) 4-year absence for:
(a) persons on board a vessel lost during s sea voyage, or an aeroplane which is missing, who have never been heard since the loss of the vessel or aeroplane;
(b) Persons in the armed forces who have taken part in war, and have been missing since; or
(c) Persons who have been in danger of death under other circumstances and their existence have not been known since.
NB: For extraordinary absence, due to the qualifying circumstance, the ordinary periods of 10 or 7 years will no longer apply for purposes. The 4 year of absence is sufficient for the application for a judicial declaration of presumptive death.
b. Effects of presumption of death. The following are the effects of presumption of death:
(1) Absentee’s estate may be distributed following the law on succession and inheritance;
(2) Personal and non-transferrable rights of the absentee shall be extinguished – e.g., contractual right allowing a person to receive something in person only and not via someone else.
(3) Personal and non-transferrable obligations of the absentee shall be extinguished – e.g., a painter commissioned to do art who is presumed dead.
3) Presumption of death vs Absence. The presumption of death and absence are separate and with produces different effects. In a presumption of death, the absentee is presumed dead for all intents and purposes resulting in extinguishment of personal rights and obligations. On the other hand, in an absence only, the absentee is still presumed alive only and thus an administrator is appointed to manage the absentee’s properties for the time being.
Article 392. If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents. (194)
Notes:
1) Effects of absentee reappearing. If for any reason the absentees reappear or their existence is proven despite not appearing (e.g., in a different country), the following are the effects:
(a) Recovery of their properties in the condition these may be found; and
(b) Recovery of the price of any properties that may have been alienated or the property acquired therewith;
(c) Non-recovery of fruits or rents of their properties.
a. Recovery of their properties in the condition these may be found. The recovery of the properties in the condition that these may be found is further subject to the provisions on ownership and possession of movables and immovables, particularly those involving buyers in good faith especially if there is a title to the property, as well as public auction sales.
b. Recovery of the price of any properties that may have been alienated or the property acquired therewith. Based on this provision, it is possible to acquire the properties and the price for which it may have been sold, including any property acquired therewith (e.g., part purchase, part barter).
NB: There is thus the possibility of unjust enrichment on the part of the absentees in cases where they can recover both their property (e.g., collection of stamps) which is still in good condition and the purchase price in the millions.
c. Non-recovery of fruits or rents of their properties. The recovery of the properties do not include the fruits or rents that may have been produced in the time being.
References
• Title XIV – Absence, Book I, Civil Code
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/Updated: April 23, 2023
