Presumed death is a legal concept in Civil Law that allows for the judicial declaration of the death of a natural person, regardless of the location of their remains, aiming to terminate legal personality and regulate the succession and property effects resulting from the vacancy of biological existence.
Concept and Foundation
Presumed death constitutes a legal fiction necessary for the stability of private relations and legal certainty. While actual death, attested by a death certificate, ends civil personality under the terms of Art. 6 of the Civil Code (CC/02), presumed death is effected by a declaratory judgment, compensating for the lack of material proof of death, but producing property and succession effects identical to those of natural death.
The legal nature of the institute is declaratory, producing ex tunc effects from the date the decision becomes final or, as the case may be, from the date set in the judgment. The Brazilian legal system regulates the matter under two main aspects: presumed death with a declaration of absence (Arts. 22 to 39 of the CC/02) and presumed death without a declaration of absence (Art. 7 of the CC/02).
Historical Origin and Evolution
The institute dates back to Roman Law, specifically under the influence of the fictio legis Cornelia, which sought to protect the succession rights of citizens who died in captivity. Historical evolution, passing through the Napoleonic Code of 1804, consolidated the need for a rite that would mitigate the legal uncertainty caused by prolonged disappearance or imminent risk of death in situations of catastrophe or armed conflict, avoiding the immobilization of assets and prejudice to third parties and heirs.
Legal Provision and Modalities
The 2002 Brazilian Civil Code, in its Article 7, establishes the hypotheses for presumed death without a declaration of absence:
- I - If it is extremely probable that the person who was in danger of death has died;
- II - If someone, missing in a military campaign or taken prisoner, is not found within two years after the end of the war.
Sole paragraph: The declaration of presumed death, in these cases, may only be requested after searches and inquiries have been exhausted, and the judgment must set the probable date of death.
Additionally, articles 22 to 39 regulate absence, an institute that, after the rite of curatorship of assets and provisional succession, culminates in definitive succession, which is legally equivalent to presumed death.
Jurisprudential Understanding and Practical Application
The current jurisprudence of the Superior Court of Justice (STJ) reaffirms the need for robust proof of the risk situation for the application of Art. 7, I, of the CC. In recent rulings, the STJ has relaxed the interpretation regarding "extreme probability," admitting the use of documentary and testimonial evidence that corroborates the disappearance in contexts of accidents (such as natural disasters or shipwrecks). The STF, in turn, recognizes the constitutionality of the institute due to its social function, ensuring that the right to inheritance (Art. 5, XXX, CF/88) does not suffer unjustified obstruction due to the absence of a corpse.
Within the scope of Social Security Law, presumed death is widely applied by the INSS for the granting of a death pension, observing the date set in the judicial sentence for the start of the benefit, as provided for in Art. 78 of Law 8.213/1991.
Related Principles and Divergences
The principle of human dignity and the right to legal certainty are the pillars of this institute. One of the contemporary doctrinal currents discusses the speed of the presumed death procedure for victims of major environmental disasters, where cadaveric identification becomes technically unfeasible, advocating an extensive interpretation that dispenses with the exhaustive rite of absence in favor of procedural speed.
Contemporary Relevance
In a scenario of global instability and climate disasters, the institute of presumed death gains centrality. The Judiciary's ability to declare death without the materiality of the body allows for succession regularization, the release of bank funds, and the resolution of issues regarding a person's status, preventing the "legal limbo" of the missing person from perpetuating economic and emotional damage to successors.
Legal and Jurisprudential References
- Brazil. Law No. 10.406, of January 10, 2002. Establishes the Civil Code. Articles 6, 7, and 22 to 39.
- Brazil. Law No. 8.213, of July 24, 1991. Provides for the Social Security Benefit Plans. Article 78.
- Superior Court of Justice. Special Appeal No. 1.576.452/PR. Rapporteur Min. Marco Aurélio Bellizze. Third Panel. Judgment 2018.
- Supreme Federal Court. Direct Actions of Unconstitutionality related to the protection of succession rights and the effectiveness of declaratory decisions of absence.
