Life in soap land is hard enough, but death? It’s a killer. To find
out the real-world implications of coming back from the dead,
Watch! spoke with Martha Cohen Stine, a partner in the New York
City law firm Cohen Hennessey Bienstock & Rabin P.C. and past chair of the
Entertainment Committee of the New York City Bar Association

WATCH!: The body hasn’t been found, but you’re certain your loved one is dead. What do you do first?
Martha Cohen Stine: If somebody has disappeared and has been gone so long that there seems no hope that he/she will return, the absent person’s relatives are going to want to have him or her declared dead by a court of law. Without a legal declaration of death, the law would not recognize the person as dead, and the missing person’s heirs would not succeed to his or her property, would not receive insurance proceeds, pension rights or other survivors’ benefits to which they might be entitled. Any remarriage by the missing person’s spouse would constitute a bigamous marriage, which means that children born of that marriage would be out of wedlock. Thus, the way it would work in the real world, and let’s assume the relatives live in New York, is that the family would have to hire an attorney and bring a proceeding in Surrogate’s Court. They would then have to convince the court that their loved one had not been seen or heard from for three years, that they’ve made a diligent search to find him or her, and that there is no other satisfactory explanation for the person’s absence.
 
W: Once it’s officially decided the missing person is dead, what happens next?
MCS: The court issues a declaration terminating that individual’s interests in his or her property, and a death certificate. After that, the normal procedures are followed to obtain a deceased person’s assets and wrap up his or her affairs, such as probate of the person’s will, payment of life insurance proceeds and distribution of assets to the beneficiaries.
 
W: OK, it’s a sweeps month and writers have brought you back from the dead. In the real world, what would be your first step?
MCS: If you reappear after an order has been issued declaring you dead and terminating your interest in your property, and if your assets have already been distributed, then in New York, you’re out of luck. The statute says you would have no right to reclaim your assets and there would be no rewind. You’d be back from the dead to find that your relatives legally own your property. Most people would be able to convince their relatives to return their property voluntarily, but probably not on a soap opera. When you reappear you might find that your spouse has remarried, that your children have been adopted by your successor, that your driver’s license is void, that your club memberships have been terminated and that your survivors are collecting your Social Security benefits. And of course, you probably don’t have a job. One good thing is that if you’ve been declared dead, your alimony obligation has probably ceased.
 
W: Why is it three years?
MCS: The New York statute originally stipulated seven years before a proceeding could be commenced to have a person declared dead. The statute was amended in the early 1990s and the period of time shortened to three years or less to accommodate families of plane-crash victims and to give families the ability to obtain an immediate declaration of death if it was clear that the missing person perished in a known catastrophe. After September 11th, additional measures to shorten time periods, streamline procedures and assist the families of the people who perished in the World Trade Center attack were implemented in New York.