Legal Consequences of Death and Absence in the Civil Code

Civil Personality and the Extinction of Life

Article 32 of the Civil Code: Death

Civil personality is extinguished by the death of individuals.

Article 33 of the Civil Code: Presumption of Simultaneous Death (Comoriencia)

If there is doubt between two or more people as to who died first, and the previous death of one or another cannot be proven, they are presumed dead at the same time. In this case, there is no transfer of rights to another.

Understanding Comoriencia

Presumption of Comoriencia: This legal principle applies when there is doubt between two people who die at the same time. Proving that one died before the other must be demonstrated (often relevant for inheritance purposes).

Declaration of Death (Declaración de Fallecimiento)

Article 193 of the Civil Code: Requirements and Timelines

The declaration of death should be sought under the following conditions:

1. After ten years since the last news of the absent person, or, failing that, since their disappearance.
2. After five years of the latest news, or, failing that, from their disappearance, if the absent person would have completed seventy-five years of age during this term.

Note on Deadlines: The deadlines expressed above are tallied from the expiration of the calendar year in which the latest news was received, or, failing that, from the date of disappearance.

3. Less than one full year, counting from date to date, following an imminent risk of death from violence against life, provided the person has not been found and no news has been received after the violence. If this claim term is three months, presumably if the violence occurred during a subversion of social or political order, and the person disappeared without returning to be heard from, provided six months have elapsed since the cessation of the subversion.

Shorter Periods for Declaration of Death

Shorter periods may apply in specific cases of imminent risk of death:

• Imminent Risk of Death due to Violence: The declaration can be requested after 1 year.
• Catastrophe or Claim (e.g., plane crash, shipwreck): Must be sought after 6 months, provided the corpse could not be identified.
• Armed Conflict (Missing Persons): 2 years from the end of the conflict.

Recording the Declaration of Death

The declaration is recorded in the Civil Registry:

• Beside the book of birth (with a marginal note).

Legal Effects of the Declaration of Death

Article 85 of the Civil Code: Dissolution of Marriage

Marriage is dissolved, as is the manner and time of its conclusion, by the death or declaration of death of a spouse, or by divorce.

• The marriage is extinguished, and the surviving spouse is free to remarry.

Opening of Succession and Inheritance

The succession opens upon the declaration of death. From this point, the heirs may agree on the distribution:

• Judged by indirect relatives.
• Family members next in line (spouse, ascendants, and descendants).

Article 196 of the Civil Code: Restrictions on Heirs

Upon the declaration of death of the absent person, the succession opens in the goods of the same, proceeding to its procedures for awarding judgments of probate or abintestat (intestate succession), as appropriate, or extra-judicially.

The heirs may not dispose of the goods free of charge (gratuitously) for up to five years after the declaration of death. Until this period elapses, legacies will not be delivered, if any, nor will the legatee have the right to demand them, except for the suffrage in Manes (pious soul) of the testator or bequests on behalf of charities.

It is an unavoidable obligation of the successor, even if a partition is not necessary, to provide the notary public with a detailed inventory of personal property and a description of buildings.

If the Declared Person Returns Alive

If the person declared dead is found to be alive, the following consequences apply:

• Regarding Marriage: The marriage remains extinct.
• Regarding Inheritance: The person declared dead is entitled to recover all goods. If some goods are not in the hands of the heirs, the recovered person has a right to claim against the heirs. However, the recovered person cannot claim the fruits (profits or income) that those goods produced during the time of absence.