Legal death

Legal death is the recognition under the law of a particular jurisdiction that a person is no longer alive. In most cases, a doctor's declaration of death (variously called) or the identification of a corpse is a legal requirement for such recognition. A person who has been missing for a sufficiently long period of time (typically at least several years) may be presumed or declared legally dead, usually by a court. When a death has been registered in a civil registry, a death certificate may be issued. Such death certificate may be required in a number of legal situations, such as applying for probate, claiming some benefits or making an insurance claim, etc.

Medical declaration

Most legal determinations of death in the developed world are made by medical professionals who pronounce death when specific criteria are met. Two categories of legal death are death determined by irreversible cessation of heartbeat and breathing (cardiopulmonary death), and death determined by irreversible cessation of functions of the brain (brain death). In the United States, each state has laws for determining these two categories of death that are modeled after the Uniform Determination of Death Act.

Cardiopulmonary criteria for death are met when a physician determines that efforts to restart a stopped heart during cardiac arrest are futile, or that no attempt should be made to restart a stopped heart, such as when there is a Do Not Resuscitate (DNR) order. In the latter case, irreversible is understood to mean that heartbeat and breathing cannot return on their own and will not be restored by medical intervention.[1]

Brain death determinations are made in cases where heartbeat and breathing are supported by machines. Brain death is determined by there being no signs of brain function during neurological examination of a person with a beating heart.[2] Confirmatory tests document either no blood flow to the brain, or no brain electrical activity in absence of factors[3] known to produce reversible loss of brain function.[4] Unlike cardiopulmonary death which sometimes involves a decision not to resuscitate the heart, brain death is a determination that the brain biologically cannot be resuscitated.

If a clinically dead person has suffered injuries so severe that resuscitation is obviously impossible, then in some jurisdictions first responders may make a legal determination of cardiopulmonary death. Such a person is said to be dead on arrival (DOA) or dead at the scene.

Presumption of death

In some cases, a person will be declared dead even without any remains or doctor's declaration. This is under one of two circumstances. First, if a person was known to be in mortal peril when last seen, they can often be declared dead shortly after. Examples would be the passengers of the Titanic that were not rescued after the ship sank. Second, if a person has not been seen for a certain period of time and there has been no evidence that they are alive. The amount of time that has passed varies by jurisdiction, from as little as four years in the US state of Georgia to twenty years in Italy.

False declarations of death

There are three general categories where people may be falsely declared dead: by mistake, because of fraud, or as punishment for a crime.

Mistaken presumption of death

Sometimes people who are declared dead return and are unable to be declared alive. One study estimated that every year, the U.S. Social Security Administration declares 12,200 alive citizens as dead.[5]

Notable examples

  • Donald E. Miller Jr., an Ohio man declared legally dead in 1994. He resurfaced in 2013 and sued to be declared alive, but the court declined and ruled he was still legally dead.[6]

Fraudulent death

In some cases, a legal declaration of death is fraudulent. Several people have faked their own deaths for various reasons. The most common reasons for this are to collect insurance money, to avoid capture by police or to avoid paying debts.

At times, people declare other people dead for some benefit to themselves. For example, Constantin Reliu, a Romanian man living in Turkey was declared dead by his wife so that she could remarry.[7][8] In India, several people have been fraudulently declared dead by family members wishing to steal land and other property. The best known is Lal Bihari, who was fraudulently declared dead by family members, and was legally dead between 1975 and 1994. Bihari founded the Association of Dead People to help others in similar situations.[9] Despite being victims of fraud, it often takes many years to reverse a fraudulent death declaration, and at times it never happens. Bihari didn't get his declaration of death reversed until 1994, 19 years later,[9] and Reliu lost a court battle to be declared alive in 2018.[7][8]

As punishment

Historically, those who have committed crimes or other wrongs against the state have been declared legally dead despite being obviously alive. This is known as civil death. Such a person loses all rights normally granted a person. In jurisdictions that practiced civil death, it was legal to murder such a person, since they were not actually alive accordingly to the law, and therefore not actually killed.

Investigation

Determining cause of death often has important legal implications. Governments appoint a coroner to both determine cause of death, and if necessary, identify bodies when their identities are unknown. Deaths are usually classified as natural, accidental, homicide or suicide. A soldier is often listed as killed in action if the death was during military service. There are legal implications to all of the classifications.

Estate

In nearly all jurisdictions, dead people do not have the right to own property. When a person dies, their property needs to be distributed to others in a process called probate. People can specify their wishes before they die by preparing a will and testament. If there is no will, the laws of their country determine how the property is distributed. In most cases, it would go to next of kin, such as a spouse or adult child. If the person who died is wealthy, often a portion of their property will be collected by an estate tax.

References

  1. ↑ Controversies in the Determination of Death: A White Paper by the President's Council on Bioethics. bioethics.gov. 2008. p. 84. For this reason, many have argued that the word "irreversible" in this context should be understood to mean "cessation of circulatory and respiratory functions under conditions in which those functions cannot return on their own and will not be restored by medical interventions."
  2. ↑ van der Lugt A (November 2010). "Imaging tests in determination of brain death". Neuroradiology. 52 (11): 945–947. doi:10.1007/s00234-010-0765-7. PMC 2952109. PMID 20820765. There is uniform agreement on the clinical neurological examination to evaluate absence of brain function. This examination includes the assessment of coma, the absence of brain reflexes, and the assessment of apnea.
  3. ↑ Wilson, William C.; Grande, Christopher M.; Hoyt, David B. (2007). Trauma: Critical Care (1st ed.). CRC Press. p. 133. ISBN 978-0824729202. However, barbiturate coma, metabolic dysfunction (e.g. hepatic encephalopathy), severe hypothermia (temperature < 18°C), and other confounding factors may also produce cerebral electric silence on EEG.
  4. ↑ van der Lugt A (November 2010). "Imaging tests in determination of brain death". Neuroradiology. 52 (11): 945–947. doi:10.1007/s00234-010-0765-7. PMC 2952109. PMID 20820765. Confirmatory tests can be classified into two categories: confirmation of loss of electrical activity (electroencephalography or somatosensory-evoked potentials) and demonstration of loss of cerebral blood flow (cerebral angiography, transcranial doppler ultrasonography, or cerebral scintigraphy).
  5. ↑ https://priceonomics.com/what-its-like-to-be-declared-dead-by-the/
  6. ↑ https://www.nytimes.com/2013/10/12/us/declared-legally-dead-as-he-sat-before-the-judge.html
  7. 1 2 https://www.independent.co.uk/news/world/europe/romania-courts-constantin-reliu-vaslui-turkey-deported-death-certificate-legal-system-latest-a8262196.html
  8. 1 2 https://www.npr.org/sections/thetwo-way/2018/03/16/594431754/man-claims-hes-not-dead-court-doesn-t-buy-it
  9. 1 2 https://www.nytimes.com/2000/10/24/world/azamgarh-journal-back-to-life-in-india-without-reincarnation.html
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