by: Atty. Gregorio B. Austral, CPA
The Legal Effects of ‘Death’ and ‘Resurrection’
We are celebrating today the resurrection of Jesus Christ from the dead. According to theologians, the resurrection signifies a new birth into a living hope through the resurrection of Jesus Christ from the dead. In the Christian faith, His death and resurrection gives us the promise of salvation. With this promise of salvation, our property rights and marital relationship on earth are totally insignificant when compared to what is in store for us in heaven.
But what if a person dies and literally rises from his grave? What are the legal consequences?
There is no provision in the Civil Code and the Family Code that directly answers this question although there have been stories about dead men who woke up from their caskets. The closest provision that can address this issue is the Civil Code and the Family Code provisions on presumptive death.
A person’s absence, a condition where it is unknown whether or not he still lives, can lead to presumption of death. Under Article 390 of the Civil Code, a person shall be presumed dead for all purposes, except for those of succession, after an absence of seven years. Normally, death opens succession. In the case of a person who is absent or his whereabouts are unknown, succession is not opened immediately upon his disappearance. 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.
There are instances when a person shall be presumed dead for all purposes, including the division of the estate among the heirs, for a shorter period of time. These are the following: (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; and (3) a person who has been in danger of death under other circumstances and his existence has not been known for four years.
The marriage of a person who is missing subsists until the spouse present can secure a declaration from a court of competent jurisdiction of his presumptive death by invoking Article 41 of the Family Code. Be forewarned though that Article 41 is not a convenient solution to a problematic marriage. One spouse cannot simply agree to disappear to give chance to the other spouse to obtain a declaration of presumptive death.
In Republic vs. Maria Fe Espino Cantor, G.R. No. 184621, December 10, 2013, the Supreme Court emphasized that the remedy of Declaration of Presumptive Death under Article 41 of the Family Code imposes a stricter standard compared to the old provision in the Civil Code. The Court said that Article 41 requires a “well-founded belief ” that the absentee is already dead before a petition for declaration of presumptive death can be granted.
Under Article 41, the time required for the presumption to arise has been shortened to four (4) years; however, there is need for a judicial declaration of presumptive death to enable the spouse present to remarry. Also, Article 41 of the Family Code imposes a stricter standard than the Civil Code: Article 83 of the Civil Code merely requires either that there be no news that such absentee is still alive; or the absentee is generally considered to be dead and believed to be so by the spouse present, or is presumed dead under Articles 390 and 391 of the Civil Code. The Family Code, upon the other hand, prescribes as “well founded belief” that the absentee is already dead before a petition for declaration of presumptive death can be granted.
Thus, mere absence of the spouse (even for such period required by the law), lack of any news that such absentee is still alive, failure to communicate or general presumption of absence under the Civil Code would not suffice. This conclusion proceeds from the premise that Article 41 of the Family Code places upon the present spouse the burden of proving the additional and more stringent requirement of “well-founded belief” which can only be discharged upon a showing of proper and honest-to-goodness inquiries and efforts to ascertain not only the absent spouse’s whereabouts but, more importantly, that the absent spouse is still alive or is already dead.
The law did not define what is meant by “well-founded belief.” It depends upon the circumstances of each particular case. Its determination, so to speak, remains on a case-to-case basis. To be able to comply with this requirement, the present spouse must prove that his/her belief was the result of diligent and reasonable efforts and inquiries to locate the absent spouse and that based on these efforts and inquiries, he/she believes that under the circumstances, the absent spouse is already dead. It requires exertion of active effort (not a mere passive one).
When the declaration of presumptive death has been secured by the spouse present, he is now free to contract another marriage. However, when the absent spouse reappears or is “resurrected from the dead”, the subsequent marriage shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio (Art. 42, Family Code).
The termination of the subsequent marriage referred to Article 42 shall produce the following effects: (1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate; (2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse; (3) Donations by reason of marriage shall remain valid, except that if the done contracted the marriage in bad faith, such donations made to said done are revoked by operation of law; (4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession (Art. 43, Family Code).