CHAPTER 2121: PRESUMED DECEDENTS' LAW

(A) Except as provided in division (B) of this section, a presumption of the death of a person arises:

(1) When the person has disappeared and been continuously absent from his place of last domicile for a five-year period without being heard from during the period;

(2) When the person has disappeared and been continuously absent from his place of last domicile without being heard from and was at the beginning of his absence exposed to a specific peril of death, even though the absence has continued for less than a five-year period.

(B) When a person who is on active duty in the armed services of the United States has been officially determined to be absent in a status of “missing” or “missing in action,” a presumption of death arises when the head of the federal department concerned has made a finding of death pursuant to the “Federal Missing Persons Act,” 80 Stat. 625 (1966), 37 U.S.C. 551, as amended and hereafter amended.

Effective Date: 09-30-1974

(A) When such a presumption of death arises under section 2121.01 of the Revised Code with respect to a person who at the time of disappearance was domiciled in this state, the attorney general of this state or any person entitled under the last will of such presumed decedent or under Chapter 2105. of the Revised Code to any share in the presumed decedent’s property within this state, or any person or entity who, under the terms of any contract, beneficiary designation, trust, or otherwise, may be entitled to any property, right, or interest by reason of the death of the presumed decedent, may file a complaint setting forth the facts which raise the presumption of death in the probate court of the county of the presumed decedent’s last residence.

(B) When a presumption of death arises pursuant to section 2121.01 of the Revised Code with respect to a person who at the time of the person’s disappearance was domiciled at a place other than within the state, and the presumed decedent owns real property within this state, the complaint may be filed in the county where any part of the real property of the presumed decedent is located by any of the persons or entities referred to in division (A) of this section, or by any domiciliary executor or administrator of the decedent. A foreign fiduciary shall include with the complaint an exemplified copy of the domiciliary proceedings pursuant to which the foreign fiduciary was appointed.

(C) In the case of a presumed decedent who was domiciled in this state, the complainant shall name as parties defendant the presumed decedent and each of the following that do not join in the complaint:

(1) The presumed decedent’s surviving spouse, if any;

(2) All persons known to the complainant who are entitled under the presumed decedent’s last will and all persons who are entitled under Chapter 2105. of the Revised Code to any share of the presumed decedent’s property;

(3) All persons or entities known to the complainant who have or would have by reason of the presumed decedent’s death any right or interest under any contract, beneficiary designation, trust, or otherwise;

(4) All contract obligors known to the complainant whose rights or obligations would be affected by a determination that the presumed decedent is in fact dead.

(D) In the case of a presumed decedent who was not domiciled in this state but who owned real estate in this state, the complainant shall name as parties defendant each of the following that do not join in the complaint:

(1) The presumed decedent’s surviving spouse, if any;

(2) All persons known to the complainant who are entitled under the presumed decedent’s last will and all persons who are entitled under Chapter 2105. of the Revised Code to any share of the presumed decedent’s real property within this state.

(E) All parties defendant, other than the presumed decedent, shall be served with summons in the same manner as provided by the Rules of Civil Procedure.

(F) The complainant shall cause to be advertised once a week for four consecutive weeks in a newspaper published in the county, the fact that the complaint has been filed together with a notice that on a day certain, which shall be at least four weeks after the last appearance of the advertisement, or after the final publication where any defendant is being served by publication, whichever is later, the probate court will hear evidence relevant to the allegations of the complaint.

(G) No guardian ad litem, trustee for the suit, or other representative shall be required to be appointed to represent the presumed decedent in the proceeding.

Effective Date: 05-16-2002

At the hearing the probate court shall hear such legally admissible evidence as is offered for the purpose of ascertaining whether the presumption of death is established. No person shall be disqualified to testify by reason of relationship as husband or wife to the presumed decedent, or by reason of an interest in the presumed decedent’s property, or because of a right or interest under the terms of a contract, beneficiary designation, trust, or otherwise, arising by reason of the death of the presumed decedent.

Effective Date: 09-30-1974

(A) If satisfied that a presumption of death has been established, as provided in section 2121.01 of the Revised Code, the probate court shall so decree.

(B) The death of such presumed decedent shall for all purposes under the law of this state be regarded as having occurred as of the date of such decree.

(C) If the presumed decedent is married on the date of the decree, the presumed decedent’s marriage is dissolved by the decree. No subsequent vacation of the decree, as provided in section 2121.08 of the Revised Code, shall affect the dissolution of the marriage.

Effective Date: 09-30-1974

(A) Except as provided otherwise in Chapter 2121. of the Revised Code, all of the proceedings for the probate of the decedent’s last will, if any, and all the proceedings, domiciliary or ancillary, for the administration of the decedent’s estate that are set forth in the Revised Code for use upon the death of a decedent, shall upon the signing of the decree be instituted and carried on in the same manner as if the presumed decedent were in fact dead. All acts pursuant to these proceedings shall be as valid as if the presumed decedent were in fact dead.

(B) Following the decree the court may make such supplementary orders as in its discretion are necessary to consummate any right or interest arising by reason of the death of the presumed decedent under any contract, trust, or other nonprobate property interest of any person or entity who was a party to the proceedings. The court may condition the granting of any such order by requiring any person or entity who would benefit thereby to furnish bond for a three-year period after the decree in the form and amount, with or without sureties, as the court shall order. If any supplementary order is directed to the holder of assets of the presumed decedent which were created by the decree of presumed death, the court, at the request of the party defendant to whom the order is directed, shall condition the granting of any such order by requiring any person or entity who would benefit thereby to furnish a suretyship bond for a three-year period after the decree in the amount of the assets so created by the decree with interest for the period of the bond at the rate specified in the order.

(C) The term “assets of the presumed decedent which were created by the decree of presumed death” as used in division (B) of this section and division (D) of section 2121.08 of the Revised Code, means those potential assets of the presumed decedent in which the presumed decedent had a contractual or other right, contingent upon the presumed decedent’s death, to have such assets paid to his designee and the decree of presumed death would fulfill the contingency. Only that portion of the proceeds of life insurance policies on the life of the presumed decedent that exceeds any net cash surrender value of such policies on the date of the decree is within the definition of the term “assets of the presumed decedent which were created by the decree of presumed death.”

(D) The bond shall provide that, if within the three-year period after the decree is entered by the court it is established that the presumed decedent is alive, such person or entity shall on the subsequent order of the court refund or return any sums, with interest as provided in the court order, or property received by virtue of such order, to the presumed decedent or to the person or entity who, by reason of the erroneous finding of death of the presumed decedent, made such payment or delivered such property. The bond shall be further conditioned on returning the fair value of the property if the same shall have been sold or otherwise disposed of in the interim.

(E) If the person or entity who would benefit by an order, as provided in division (B) of this section, fails to provide a bond for the amount of the assets of the presumed decedent which were created by the decree, with interest as specified in the order, the holder shall hold those assets for the three-year period they would have been bonded. In that event, the holder shall pay interest at the same rate specified in the order as a condition of the bond and the interest shall accumulate and be held throughout that period.

(F) Nothing in this section shall preclude such person or entity from selling, encumbering, or otherwise disposing of any property so received and any purchaser, transferee or mortgagee acquires good title to such property free and clear of any claim of the presumed decedent.

Effective Date: 09-30-1974

Upon the signing of the decree establishing the death of the presumed decedent, the real estate of the presumed decedent passes and devolves as in the case of actual death and the persons entitled by will, or under Chapter 2105. of the Revised Code, may enter and take possession. Persons taking the real estate may sell or mortgage it and the purchaser or mortgagee takes a good title, free and discharged of any interest or claim of the presumed decedent. The persons taking such real estate shall not sell, convey, or mortgage any part thereof within the three-year period specified in section 2121.08 of the Revised Code without first giving bond in an amount to be fixed by the probate court and with sureties to be approved by the court. In the discretion of the court the bond may be taken without sureties. Such bond shall be conditioned to account for and pay over to the presumed decedent, in case within the three-year period after the decree is entered by the court it is established that the presumed decedent is still alive, the value of the real estate sold or conveyed, or in the case of the making of a mortgage, to pay the amount of the mortgage and interest thereon, or in case of a foreclosure of such mortgage, to account for and pay over the value of the real estate mortgaged.

Effective Date: 05-16-2002

(A) Before any distribution of personal property is made from the estate of a presumed decedent, the persons entitled to receive such property may in the discretion of the court and as a condition of distribution be required to give bond in the form and amount, with or without sureties, as the court orders, with the condition that if within a three-year period after the decree is entered by the court it is established that the presumed decedent is alive, the distributee will upon subsequent order of the court refund or return the property to the presumed decedent, or the fair market value of property if the same shall have been sold or otherwise disposed of in the interim.

(B) Nothing in this section shall preclude a distributee from selling, encumbering, or otherwise disposing of any property so distributed and any purchaser, transferee, or mortgagee acquires good title to such property free and clear of any claim of the presumed decedent.

Effective Date: 09-30-1974

(A) The probate court may at any time within a three-year period from the date of the decree establishing the death of a presumed decedent, upon proof satisfactory to the court that the presumed decedent is in fact alive, vacate the decree establishing the presumption of his death. After the decree has been vacated all the powers of the executor or administrator of the presumed decedent cease, but all proceedings had and steps taken with respect to the administration of the estate of the presumed decedent prior to the vacating of such decree remain valid. The executor or administrator of the estate of such presumed decedent who is found to be alive shall settle his account of his administration down to the time of the vacating of the decree and shall transfer all assets remaining in his hands to the person as whose executor or administrator he has acted, or to such person’s authorized agent or attorney.

(B) The title of any person to any money, property, right, or interest as surviving spouse, next of kin, heir, legatee, devisee, co-owner with right of survivorship, beneficiary or other contractual payee, successor to a trust interest, or otherwise of the presumed decedent shall be subject to this section, and upon vacating of such decree as provided in this section any property, money, right, or interest, or the fair value thereof if the same shall have been sold or otherwise disposed of, may be recovered from the person who had received any such property.

(C) Except as provided in division (D) of this section, in any action against a beneficiary for the recovery of property or the value thereof, or upon the bond given as condition for delivery of money, other personal property, or sale or encumbrance of real property, the beneficiary may set off as against such claim, an allowance for services rendered in maintaining or preserving the property, and for any moneys or other considerations made or given by the beneficiary for the preservation, care, or maintenance of the property during the period of absence of the person erroneously presumed to be dead, and the reasonable value of any part of the property used for support by those whom the person erroneously presumed to be dead had a legal obligation to support during his absence.

(D) There shall be no set off as against those assets defined in division (C) of section 2121.05 of the Revised Code to be assets of the presumed decedent which were created by the decree of presumed death. Those assets created by the erroneous decree of presumed death shall be returned with interest to the person entitled thereto.

(E) Any net cash surrender value on any policies of life insurance on the life of a person erroneously presumed to be dead are subject to the set off provision in division (C) of this section. The person erroneously presumed to be dead, or persons claiming under him, may recover whatever remains of cash values from the person to whom paid. Such claimants have no recourse against the insurance company which made such payments, and it is discharged from liability on the policies affected.

Effective Date: 11-01-1977

After vacation of the decree of the presumption of death has been established, as provided by section 2121.08 of the Revised Code, the person erroneously presumed to be dead may, on motion filed of record stating the facts, be substituted as plaintiff or petitioner in all actions or proceedings brought by the executor or administrator, whether prosecuted to judgment or decree or otherwise. Such person may, in all actions or proceedings previously brought against the executor or administrator, be substituted as defendant or respondent, on motion filed by him or on his behalf, but shall not be compelled to go to trial in less than three months from the time of filing of such motion. Judgments or decrees recovered against the executor or administrator, before the vacation of the decree, may be opened on application made by the person erroneously presumed to be dead within three months after the vacating of the decree, provided it is supported by an affidavit alleging the existence of facts which would be a valid defense. If the application is not made within the three months or is made but the supporting alleged facts are adjudged an insufficient defense, the judgment or decree is conclusive to all intents, saving the defendant’s right to review as in other cases on appeal.

Effective Date: 09-30-1974

Effective Date: 09-30-1974