January 1, 1900

Grief for the lives lost on that unforgettable September day has dominated the world for the last nine months. The images of the buildings, the pictures of the missing, the heroes and the televised funerals are now beginning to fade. While Americans are slowly healing and moving forward, the families directly affected by the tragedy must contemplate the extent of their loss and contend with the financial worries that lie ahead.

Those killed in the tragedy include executives of some of the largest corporations in the world, owners and employees of small businesses, support and janitorial staff and emergency personnel. Undoubtedly, many victims were their families' primary breadwinners. Regardless of the career choices of these unfortunate men and women, the surviving families have sustained severe financial loss. Fortunately, people today are more likely to have life insurance, Social Security and Workers' Compensation benefits allowing them to provide for their families in the event of death. However, to collect on any of these policies or to receive death benefits, the issuance of a death certificate is vital.

Due to the nature and extent of the damage to the World Trade Center, many families have been unable to, and may never, recover the remains of their lost family members. Prior to September 11th, a family, who could not furnish evidence that a loved one was dead (through identifiable remains), could not obtain a certificate of death until the lost family member had been missing for five years. To redress this significant problem, New Jersey has recently passed a law to simplify the process of obtaining a certificate of death under special circumstances.

Simple Changes Count Most

In the wake of September 11th, there have been many changes made by federal, state and local governments for the protection of its citizens. On October 3, 2001, New Jersey made its own simple change to assist the surviving members of New Jersey victims by passing law which provides for a "statutory" finding of special peril/death in the event of a "catastrophic event." While New Jersey Courts have always had the authority to apply the "special peril" doctrine under common law, the Legislature thought it was an appropriate time to ensure statutory and uniform application to assist its citizens under tragic and special circumstances. The new law permits the families of the victims to obtain a death certificate immediately without the mandatory five year waiting period and without full court intervention.

Special Peril Doctrine

The "Special Peril" doctrine is a common law doctrine which was initially established in the 1860's. The doctrine permitted family members to come before a court to establish a loved one's "death" as fact. The family member was required to provide proof that the person had undergone a "peril" indicative of death or a danger reasonably expected to cause death. Specifically, the family member had to prove circumstances which tended to show the person missing was subjected to special peril or serious danger on the day on which he was last seen or heard. If it found sufficient evidence of likely death, the court could waive the mandatory five year waiting period, declare the individual dead and direct issuance of a certificate of death. This old doctrine was primarily used for individuals who were lost at sea or who had been aboard shipwrecked vessels or downed aircraft.

Presumption of Death

The new law provides for the presumption of immediate death for persons exposed to a catastrophic event. Specifically, New Jersey amended an existing statute, which provided that a person was presumed dead only after an absence of "five continuous years, during which time he could not be heard from" and his absence "not satisfactorily explained after a diligent search." Thus, the previous statute required the family member to wait the mandatory five years before seeking to have the loved one declared dead and obtain a death certificate. The person's death was presumed to have occurred only at the end of that period unless sufficient evidence of death was presented earlier through court proceeding. The amended statute allows the missing person to be presumed dead when he is exposed to a specific event certified by the Governor as "a catastrophic event that has resulted in a loss of life to persons known or unknown and whose absence following that event is not satisfactorily explained after a diligent search or inquiry." Circumstances eliciting a finding of a catastrophic event may include an explosion of a building, collapse of a building, airplane explosion or the sinking of a ship at sea. The Governor of New Jersey has issued the necessary certification with respect to the September 11th terror attacks.

In order to obtain the benefit of the Governor's declaration, the family must file an action in the Superior Court of New Jersey and establish to the court's satisfaction that the person who is lost was, in fact, exposed to the catastrophic event and has not been found. If it finds that the missing person was exposed to a certified catastrophic event, the court will declare the death to have occurred on the date of the tragedy and direct the Registrar of Vital Statistics for the State of New Jersey to issue a certificate of death for the missing person at no cost to the family.

In addition, the new law codifies the court's authority to establish a date of death earlier than the end of the five-year waiting period if it finds that the evidence justifies such a declaration. The court may make such a finding even without a certification of catastrophe by the Governor.

Retroactive Application Applied

The statutes, as amended, are to be applied retroactively to September 11, 2001. This allows the families of those still missing as a result of the terrorist attacks to immediately apply for their loved one's death certificate. After obtaining that vital piece of paper, an application may be brought for the issuance of letters of administration, for the probate of a will, or for the appointment of a testamentary guardian. This enables families to quickly settle the loved one's estate and concentrate on the healing process. Patricia M. McIntire is an associate of the firm in the Litigation Division where she is a member of the General Litigation Practice Group. She concentrates her practice in personal injury and insurance litigation.

Patricia M. McIntire is an associate of the firm in the Litigation Division where she is a member of the General Litigation Practice Group. She concentrates her practice in personal injury and insurance litigation.