Wait...Is That Legal?
A Podcast about TV Shows and Movies and the legal issues they raise. Each episode looks at a legal topic presented in a Movie or TV Show and analyzes it based on the real laws where the episode or movie is set.
Wait...Is That Legal?
In re Flight 828 and the 4400 Returned
Re: Manifest (2018), The 4400 (2004)/Death in Absentia
How can someone be declared dead without a body? What happens if someone who was declared dead is still alive?
Sources:
Social Security Administration Handbook, Sec. 1721.
New York Consolidated Laws. Estates, Powers, and Trusts Law, Sec. 2-1.7.
Pennsylvania Consolidated Statutes. Title 10, Chapter 57, Absentees and Presumed Decedents.
“Presumption of Death” Wikipedia.
Jeanne Carriere. "The Rights of the Living Dead: Absent Persons in Civil Law" 50 Louisiana Law Review 901 (1990).
Donald Miller Story
Benjamin Holmes Story
https://archive.nytimes.com/www.nytimes.com/library/magazine/home/20001203mag-thernstrom.html
Brenda Heist Story
https://abcnews.go.com/US/runaway-moms-husband-facing-insurance-payout-fight/story?id=19102738
Written, Researched, and Recorded by Céleste Young, 2023-2025.
Music: Out On My Skateboard - Mini Vandals
Waitisthatlegal@gmail.com
Hi, this is Céleste and this is Wait…Is that Legal? A podcast that comes from my own curiosity about the legal questions raised in TV shows and movies to determine what would or should have happened in the real world. So join me, a real lawyer, as I try to offer legal advice to fictional characters in fictional scenarios using real laws. This podcast is not intended to offer real legal advice to real people in real legal situations, it is just for fun.
Today’s show is going to cover a large topic that appears in a lot in fiction, especially TV Shows. It has to do with people who mysteriously disappear and come back sometime later. For example, I just finished the 4400, I know it’s a bit older and I don’t know who even watched it, but Netflix kept recommending it… So for those of you who have no idea what that show was about here is a brief synopsis: A comet appears in the sky over Seattle, everyone freaks out because it could cause catastrophic damage on impact. Several countries try firing missiles at it, but the comet just keeps coming undeterred. Eventually, the comet becomes a ball of light that hovers over a lake in the Cascade Mountains. Then it disappears and reveals 4400 people who were previously thought to have gone missing or died. These 4400 people all disappeared in a flash of light over a period of 50 years all over the world. It is later revealed that some of the Returned have special powers.
A more recent show with the same premise is Manifest. In Manifest, a plane goes missing in flight and is assumed lost with all people on board dead. Then the plane mysteriously lands in New York with everyone alive and believing they were on a normal flight, albeit with a lot of turbulence. They are shocked to find out that it has actually been 5 ½ years since they took off from Jamaica.
In both of these shows, and many more, we are left with the question of what happens when someone disappears and is assumed dead but comes back and wants to restart their life where they left off? The questions I will attempt to answer are: how is someone declared dead if there is no body? What happens if they come back? What are the laws that apply in these scenarios? Are there any real life cases that raised similar questions?
Let’s start with the easiest question: What happens when someone goes missing and is presumed dead? When someone dies under normal circumstances a qualified individual (ie. doctor, medical examiner, or coroner) will examine the body, determine that the person is deceased, and issue a death certificate. The death certificate can then be used to conclude the deceased person’s affairs and their estate can be dealt with through the probate process or the execution of their will.
However, there are some situations where a person is very likely dead, but due to the circumstances of death (explosion, plane crash, drowning, etc.) or the intentional destruction of evidence (a murderer hiding or destroying the victim’s body), there is no body to prove the person is dead. In these scenarios a death certificate can be issued based on statutory requirements, this is referred to as death in absentia. Then there is the situation where a person goes missing without a trace and a death certificate cannot be issued based on physical evidence.
In ancient times (probably Roman), the presumption was that if a person was absent then they were presumed to continue living unless it could be proven that they were dead. So unless you could prove someone was dead it was not possible to settle their affairs. In English common law, which is the basis of U.S. Federal and State law (minus Louisiana); there was a presumption of death based on absence for a number of years. This was later settled to be 7 years of continuous absence with no contact or reason to believe the person might still be alive. Most states in the U.S. have adopted a 5 year window either through their own statutes or by adopting the Uniform Probate Code. The Federal Government under the Social Security Administration uses this rule, from their handbook:
We presume a person is dead if he or she has been missing from home and has not been heard from for seven years or more. This presumption applies regardless of the reason for the absence.
Once the presumption applies, it can only be disputed if we:
A. Prove the person is alive; or
B. Provide an explanation that explains the individual's absence and continued life.
It is also possible to skip the waiting period when someone disappears in circumstances that would likely lead to their death. For example, plane crashes, natural disasters, maritime disappearances, and terrorist attacks have all been used to explain someone’s death even if there is no body recovered because the circumstances make it very unlikely that they could have survived. Many States have special probate provisions for September 11, 2001, so relatives of victims who died did not have to wait for forensic confirmation or the statutory period to run out.
When the statutory requirements are met and someone is declared dead in absentia, then the heirs of the missing person can continue as though the person is dead. And in reality this a great system because it means that family, friends, and businesses can move on when someone disappears in a disaster or has been missing for a long time. It means they can access accounts, receive survivor benefits, deal with debts, sell property, get remarried, and provide for minor children.
Now is probably a good time to explain what probate means and what legally happens when someone dies. Probate refers to process of entering and validating a dead person’s will. The term is also generally used to describe the entire process of Court supervised execution of a will and distribution of the deceased person’s estate. The Court in question is called a Probate Court and the rules that are followed are codified by the State’s legislative in the State’s Probate Code. It is possible for some estates to be distributed or settled without the use of the Probate Process for various reasons, but that is a whole other topic that I will not be going into more detail on today. However, if there is any question regarding a person’s will or if they die without a valid will in place, the entire affair will be overseen by the Probate Court.
The simplest explanation of what happens in Probate is that: after a death certificate is issued, if the decedent (legal term for dead person) has a will the executor named in the will files the will with the probate court. The executor, under the supervision of the court, then gathers all of the decedent’s assets and debts by filing notices of the decedent’s death. Specific gifts of named items and property are distributed according to the will. Real property (land, houses, and real estate) is distributed or sold according to how the title is held by the deceased. All debts are paid, all court fees, attorney fees, taxes, and usually a payment to the executor for their services are all paid by the estates funds. The remainder of the assets are then distributed according to the will. Should someone die without a will (what we in the legal world call intestate) then the Probate court will appoint an administrator to perform similar tasks as an executor; and again all assets and debts are gathered; debts, fees, and taxes are paid; real property is dealt with according to the decedent’s title; then all remaining assets are distributed by the State’s statutory intestate succession, which varies by jurisdiction, but is always based on whether the decedent has a surviving spouse, children, grandchildren, siblings, or even surviving parents.
At the end of the Probate process the entire distribution of the estate, assets, debts, and affairs of the decedent should be wrapped up and all claims or contests are heard and resolved. When probate is officially concluded then all legal and financial matters related to the deceased are considered concluded for good.
Along with the Probate process, the other thing that happens that would concern people who are not actually dead is that the decedent’s status changes from being a person to being deceased. Deceased people no longer have the same rights as people who are alive; they cannot vote, their Social Security Number would be suspended, any payments or benefits they qualified for in life would cease, and their marital status would be ended. In many of the fictional and real world cases this ends up being the most challenging obstacle to having been declared dead because its finality can be difficult, if not impossible, to reverse.
So now that we know how someone is declared dead and what happens after that declaration, the question that remains is: whether a declaration of death can be reversed? Logically, if someone is declared dead and then shows up alive, then the person was never dead. Legally, the situation is much more complicated because of the finality of the declaration and the following resolution of the probate process. The biggest favor that the fictional characters have that their real world counterparts do not is their numbers. In the 4400, there are approximately 4400 missing people who return all at once in one place. This is a lot of people who no longer have any status as people and might no longer have a home to return to. The government in the show steps in and passes legislation to deal with the situation, granting the Returnees with new legal documentation and helping them with housing if they have nowhere to go. In Manifest, there are less people involved, but it is still a significant number (about 200). In the real world, there are only singular cases so the individuals are largely on their own in trying to reverse being legally dead.
One interesting real case is that of Donald E. Miller Jr., an Ohio man who abandoned his family in 1986. His wife had him declared dead in 1994 in order to collect the $30,000 his family would receive in Social Security death benefits. Miller reappeared in 2005 when he tried to apply for a driver’s license, but was unable to because he was legally considered dead. He also found out that he no longer had a Social Security Number and could not get legitimate employment. Despite the fact that Donald Miller was obviously alive, a fact even mentioned by the Judge in his case, his attempt to have the death declaration overturned was denied because Ohio law requires that any dispute to a declaration of death be filed within 3 years of the declaration. So because he had been declared dead over 10 years ago, Donald Miller had to remain dead under Ohio law. In the end his only option was to petition the Social Security Administration for a new SSN, which they granted.
The case of Donald Miller also brings up the issue of fraud because he technically fled his family to avoid his mounting debts and his wife had to declare him dead in order to recoup the $25,000 he owed her in spousal and child support. The SSA did actually pursue the ex-wife to get her to return the death benefit money, but the case was ultimately dropped.
So far I have only talked about death in absentia with regard to people who are in fact dead, or who have legitimately gone missing. There are people in real life and especially in fiction that fake their death or go missing for some nefarious end and this would be fraud.
In legal terms, fraud is a purposeful misrepresentation of a material fact that causes harm when a victim has justifiably relied on that fact. Fraud can be prosecuted criminally (by the State) or civilly (by the victim). An ordinary penalty of being found guilty of committing fraud is restitution, or being required to pay back the amount gained from the fraud. If someone were to fake their own death, or go missing for long enough that they know they will be presumed dead, in order to receive some material benefit for themselves or their heirs; this would be fraud. If a beneficiary of an estate were to have the person declared dead while knowing the person is not dead; this is also fraud. In several of the real world cases where people have been declared dead and returned alive they have been charged or sued with committing fraud, the outcome of these cases relies on whether it was known the person was alive or if it was reasonable to assume they were dead; and if death was misrepresented, did the person or beneficiary benefit from that misrepresentation at the expense of someone else?
In the two most recent real world cases, Donald Miller and the case of Brenda Heist, there were brief mentions of the SSA and the life insurance companies suing for fraud. As I mentioned before, the SSA did pursue Donald Miller’s ex-wife based on her having benefitted from having her ex-husband declared dead. The SSA dropped the case though, likely because of the headache required in fighting the ex-wife of an alive, but legally dead man who now has a new identity, and all over about $30,000.
In Brenda Heist’s case the SSA also decided not to pursue charges of fraud. Brenda Heist left her home in Pennsylvania in 2002, after dropping off her 2 children at school. She ended up living on the streets in Florida for 11 years. Lee Heist, Brenda’s husband at the time of her disappearance, had her declared dead after the required 7 years missing, in 2009. He then collected her $100,000 life insurance policy. Brenda reemerged in 2013 when she turned herself in to police in Florida, on what she assumed was a warrant for her arrest in Pennsylvania. She was the subject of a missing persons case involving local, state, and federal law enforcement; it does not seem that she will be held criminally liable for her disappearance. She did serve 6 months in a Florida prison for a parole violation relating to stealing a driver’s license, but she was charged and booked under an assumed identity.
It was reported that the ex-husband, Lee Heist, might face a legal challenge from the life insurance company. The article quoted an insurance expert that the situation was unusual but that because the insurance company paid out based on Brenda Heist being dead, now that she was alive Mr. Heist would have to pay back the $100,000 plus interest. The article also consulted with the local County Attorney who explained that if the case went to trial then the insurance company would have to prove that Mr. Heist committed fraud by having his wife declared dead. There is nothing to suggest that Lee Heist had any reason to suspect his wife was alive, though, there was an extensive missing person’s investigation, Lee Heist himself was considered a person of interest in her disappearance for a time; he had her declared dead because he had two children to take care of. The two experts in the article conclude that either for public image reasons, or for lack of evidence of fraud and public sympathy in the case affecting a jury, that Lee Heist would likely not have to pay back the money.
When doing research, I found nothing about this case ever going to court, so the issue must have been resolved by the parties privately or dropped entirely. I am with the County Attorney on this one, Insurance companies are pretty notorious for withholding payouts until they have done their own investigation and in this case they would have known that there was an active missing person investigation and that the death certificate was issued in absentia based only on the statutorily required 7 years of complete absence. So, the insurance company knew that it was a possibility that Brenda Heist was still alive, but it paid out the policy based on the death certificate issued that declared Brenda Heist was legally dead. Lee Heist only followed the law.
In contrast to Heist’s situation is that of an Ohio man, Ben Holmes. Holmes faked his own death in 1980 after refusing to help the mob and a policeman to build gun silencers. He feared for his life after he was badly burned in an explosion in his house which was blamed on him committing arson to collect insurance money. In 1988, after 7 years of being gone, his wife had him declared dead and collected a $100,000 life insurance policy. Unlike Heist and Miller, Holmes’ wife knew he was still alive because he had sent her word that he was okay only a few months after he initially disappeared. It also seems that he intentionally stayed close to home in part to check in on his daughter and at some point he moved back in with his widow and daughter. He was finally discovered after his ex-wife shot him and he had to be treated at the local hospital where he was identified. All his criminal charges had been dropped years before so he was actually no longer wanted, but I imagine the insurance company might want the $100,000 plus interest back.
These cases show just how complicated and difficult it can be for both the family and the “dead” person who returns alive.
Now that I have explained the law and policy issues, let’s examine the specific scenarios brought up in the fictional world.
Before we can look at the fallout in the return of the characters, we have to look at the actual declaration of their deaths. In Manifest, the characters are missing for 5 ½ years, but because they go missing while in flight it is assumed the plane crashed and that all on board died. This would trigger the disaster portion of death in absentia statutes, because it is a disaster that no one would be expected to have survived because even the wreckage was never found. As a result even passengers that live in states/countries with a statutory period of more than 5 years would likely have been declared dead. The 4400 presents the more classic death in absentia scenario, where each of the Returned in the show went missing without a trace and would have been considered a missing person until they could be declared dead by the laws of the jurisdiction where they went missing.
Because the characters were declared dead they come back to find that their estates have already been settled: marriages have been ended, apartments and houses sold, jobs given to others, life insurance paid out, and children adopted by others. The first issue we can look at is what happens to family structures. In both the shows there are main characters who return to find out their spouses are seriously dating someone else or have remarried.
In the 4400, Lily comes back to find that her infant child is now an adolescent and her husband is remarried. Her husband doesn’t want to explain to the daughter that her stepmom is not her birth mom so he tells Lily that she cannot have contact with her daughter. In Manifest Ben’s wife had moved on and was dating someone else but she drops her boyfriend and goes right back to being a married couple with Ben when he returns. So what would be the actual status of the characters’ marriages?
In all the real world cases once the absent person is declared dead their marriage is ended. This is because dead people do not have status to be married and the probate process requires the dissolution of marriage in order to deal with the estate’s assets. It also has the public policy aim of allowing the spouses of dead people to be able to move on and get married again in the future because they can’t be married to two people, this is called bigamy and it is illegal in the U.S. So when someone returns after being declared dead their marriage would still be considered over so that any new marriages would not be illegal and it is easier to sort out the situation when the new marriage is the valid one because the loose ends of the old marriage would have been resolved in probate. As Lily’s character found out though, it does not resolve the issue that during probate the surviving spouse inherits all the marital assets, like joint property, bank accounts, and sole custody of minor children. In the real world cases where a spouse disappears and returns years later after being declared dead, they usually did not regain custody of their children. The difference here is that in the real world cases there was usually a choice made by the person to abandon their life and leave their children behind and part of them being declared dead is that they have not provided any support to their family. In the two TV shows, the characters go missing through no fault of their own and cannot be considered unfit parents under the disappearance alone. Lily does get to meet her daughter later, but she likely would have been able to get parental rights restored by a Family Court and been able to have joint custody if her ex-husband had continued to refuse to allow access.
In Ben’s case on Manifest, his death declaration means he is not technically married anymore and that he would have to remarry his wife. It would not make sense that Ben would still be considered married when other passengers returned to find their spouses had remarried. That would mean those married passengers’ spouses had now become bigamists, when they clearly had no intention of having two spouses.
Another issue we can look at involves probate and what happens to business partnerships. In the very first episode of the 4400 we see Mr. Bailey show up at his old firm trying to get back his old job. The new owner of the firm, the son of Mr. Bailey’s former partner, informs Mr. Bailey that he cannot give him a job and that he is no longer a partner in the firm, despite the fact that the firm’s name still has “Bailey” in it. Mr. Bailey is informed that when he was declared dead his interest in the firm was sold and his widow signed off on the settlement. Mr. Bailey seems more upset about the nursing home his wife is now living in with dementia and that his share of the firm should have at least paid out enough to take care of her. The new owner also makes an interesting point about how there is no precedent on how to proceed and that it would likely take years for the situation to be settled. He is not wrong; in the show the return of thousands of missing people causes a lot of turmoil and the government does step in to try to sort out the immediate problems involving the Returned basic needs. Where the show deviates from reality is that it involves dead people returning after 30+ years exactly as they were when they went missing. In real world scenarios where someone disappears they would return older than they were when they left having still lived those missing years. To have someone disappear in the prime of their career and then return still in that prime, but 30 years later would be a very tricky situation to sort out.
Ultimately, in this case the new owner did nothing wrong, his father’s business partner went missing and was declared dead. When someone is declared dead their estate is dealt with exactly as though they are dead, so the firm dealt with Mr. Bailey’s share as a partner in the firm the way they would for a dead partner. We can assume the partnership was dissolved according to the laws in place in Washington State at the time Mr. Bailey was declared dead.
It’s unfortunate that Mr. Bailey’s estate did not provide better care for his wife, but the only way that a spouse can be sure that their spouse is provided for in the event of their untimely death or disappearance is to make sure that they have a will and financial supports in place before anything happens. This is a fictional world cautionary tale for those of us in the real world; if you have any assets you want to control the future of and if you have dependents you want to provide for and take care of you should have a will.
In Mr. Bailey’s case the State of Washington doesn’t have provisions in the Probate Code to deal with situations where the absent person might come back alive, but some States have actually made provisions for these scenarios. In Pennsylvania, the Probate Code actually requires that a refunding bond be issued with the distribution of property from an absentee’s estate. The bond has the condition that if the absentee returns and requests the return of the property the person that property was distributed to has to return the property, or if they sold it, make restitution. Pennsylvania requires an absentee to be missing for 7 years under normal circumstances but provides for absentees “exposed to specific peril” as a reason to limit the requirement. So if a Pennsylvania resident is one of the Returned in the 4400 who disappeared over 7 years ago and was declared dead or a passenger in Manifest declared dead in absentia because of the plane crash, they could actually recover property distributed by their will or by the Court. In the real world, this type of law likely prevents people from being hastily declared dead because beneficiaries to the absentee’s death would not get free and clear title or ownership rights to property and would probably prefer to make sure the person is definitely not coming back first.
Interestingly, Pennsylvania law also has a provision that allows for someone to be appointed to act in a legal capacity in place of the absentee until the absentee returns or is declared dead. This appointee has the discretion to use the absentee’s estate to provide for minor children (by paying child support, providing for their living expenses, and even paying for their education), make necessary payments and decisions on property (ie. paying property taxes and insurance premiums), but they do not have the ability to sell or distribute the absentee’s property.
One of the more frustrating storylines in Manifest involves Ben’s Life Insurance policy. Several years after the plane goes missing Ben’s wife hits a financial rough patch and opts to finally cash in on Ben’s life insurance. When Ben returns alive after 5 ½ years the life insurance company tries to get Ben and his wife to pay back the policy because Ben is in fact alive. It’s frustrating because this would probably happen in the real world; but just like in the Heist case I discussed before, Ben’s wife did nothing wrong. For some reason they just panic and figure out a way to work past their other debts to pay back the policy, but they would have a pretty good argument for not having to pay anything. Ben disappeared in a plane crash and was declared dead in absentia. The insurance company paid out the life insurance policy based on a declaration of death made by a court, not by someone who actually examined Ben’s dead body. Further, the declaration was made because of the high probability that a plane that goes missing over water without a trace is on the ocean floor and no one survived, but there was no wreckage ever found. Even though the probability has to be almost zero that a passenger in the scenario would have somehow survived, it is still a probability and not a certainty, which the actuaries down at the insurance company would surely understand. So, just because Ben turned up alive, he was still declared dead and his wife acted on that declaration and her belief that he had died on that plane. It makes no sense for an insurance company to be able to argue that the policy was paid out based on a false finding of death based on facts that exist in the present and not at the time that the policy was paid out. Ben was dead when the court declared him dead, he was dead when his life insurance policy was paid out, he was still legally dead when the plane landed after 5 ½ years of being missing; it shouldn’t matter that Ben is now alive, when the insurance company paid the policy he met the requirements of the contract. So, unless his policy had a bizarre clause that the policy must be paid back in full if the deceased party mysteriously turns up alive, Ben and his wife should not have to pay back the policy.
The conclusion I have come to regarding any story about dead people turning up alive is that it causes everyone involved headaches. In the legal sense, a declaration of death is a finality that doesn’t always exist so clearly in a system built on appeals, amendments, and the evolution of judicial precedents. Even rules that purport to be about the finality of an interest in real property, like the Rule Against Perpetuities, still has exceptions. Notoriously, Constitutional protections ensure that even people sentenced in the most final way, to be executed, get almost unlimited appeals and delays in execution dates for decades are common. But when it comes to death, once the probate process is over and the estate is distributed and the bills are paid; both the person and their personhood are laid to rest forever. And should that person turn out not to be dead? There are very few remedies available to them, even when they had no part in everyone believing them to be dead. It is clear that the legal system would prefer if dead people just stay dead.