O.C.G.A. § 53-9-3 (2019)
Hearing; finding of death
At the hearing the probate court shall hear such evidence as shall be offered for the purpose of ascertaining whether a diligent and reasonable effort has been made to locate the missing individual and, if appropriate, such evidence that is offered to show that the missing individual is dead or alive. No person shall be disqualified from testifying by reason of being the spouse of the missing individual or having an interest in the estate of the missing individual. If the court finds that a diligent and reasonable effort has been made to locate the missing individual and that a presumption of death has been established and has not been rebutted as provided under subsection (a) of Code Section 53-9-1 or that death has been proved by a preponderance of the evidence as provided in subsection (b) of Code Section 53-9-1, the court shall enter an order finding that the missing individual is dead and specifying the date of death.
History
Code 1981, § 53-9-3, enacted by Ga. L. 1996, p. 504, § 10.
Annotations
JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 53-9-2 are included in the annotations for this Code section. Presumption of death arising from seven years’ absence of person from accustomed place of abode, unheard from, is not conclusive, may be rebutted by proof, and is ordinarily a question of fact to be determined by the jury. Mutual Life Ins. Co. v. Dickens, 44 Ga. App. 429, 161 S.E. 657 (1931) (decided under former law). With respect to persons of whom no
account can be given, presumption of duration of life ends at expiration of seven years from the time when the person was last known to be living. Mutual Life Ins. Co. v. Dickens, 44 Ga. App. 429, 161 S.E. 657 (1931) (decided under former law). Later action. - Order of probate court under former O.C.G.A. § 53-9-2 establishing presumption of death of insured constituted a rebuttable presumption of law in later case involving action on life insurance policy. Ritter v. Prudential Ins. Co. of Am., 538 F. Supp. 398 (N.D. Ga. 1982) (decided under former O.C.G.A. § 53-9-2).
RESEARCH REFERENCES Am. Jur. 2d. - 1 Am. Jur. 2d, Absentees, §§ 1, 2, 17, 19. C.J.S. - 1 C.J.S., Absentees, §§ 4, 5, 8 et seq., 18, 19, 20, 24, 25, 26. ALR. - Validity of by-law of mutual benefit association preventing recovery upon presumption of death from seven years’ absence, 36 A.L.R. 982; 40 A.L.R. 1274. Presumption of death from absence as affected by fact that person was fugitive from justice, 44 A.L.R. 1488.
Presumption of death as evidence, 115 A.L.R. 404. Form and sufficiency of proof of death in case of insured’s disappearance, 26 A.L.R.2d 1073. Necessity and sufficiency of showing of search and inquiry by one relying on presumption of death from 7 years’ absence, 99 A.L.R.2d 307.