Session Law

Identifying Information:L. 2002 ch. 071
Other Identifying Information:2002 House Bill 2733
Tax Type:Other
Brief Description:An Act concerning presumptive death, relating to persons absent after catastrophic events and disasters; amending K.S.A. 59-2704 and 59-2705 and repealing the existing sections.
Keywords:


Body:

CHAPTER 71

HOUSE BILL No. 2733


An Act concerning presumptive death, relating to persons absent after catastrophic events

and disasters; amending K.S.A. 59-2704 and 59-2705 and repealing the existing sections.

Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 59-2704 is hereby amended to read as follows: 59-

2704. (a) An absentee shall be presumed to be dead for the purposes of

this act if:

(1) The absentee shall remain unheard from by those persons most

likely to hear from such absentee for a period of not less than five years,;

and

(2) one or more persons who had a bona fide motive for locating the

absentee have conducted a diligent search for the absentee in all places

where such absentee's presence could reasonably be expected.

(b) If no such search has been made with reference to an absentee

who has been unheard from for more than five years and for whose estate

a trustee has been appointed in accordance with this act, the district court

may on the court's own motion order the trustee to conduct such search

under the direction of the court and pay the reasonable expenses thereof

out of the estate.

(c) Absentees missing as a result of a catastrophic event or disaster

shall be presumed dead under section 2, and amendments thereto.

New Sec. 2. (a) In cases of catastrophic events, disasters, states of

emergency or states of war emergency, the death of persons whose bodies

could not be found or identified shall be established according to the

following procedure:

(1) The governor or president of the United States or both shall have

declared a state of emergency or state of war emergency.

(2) An absentee shall be presumed dead immediately after the cata-

strophic event if:

(A) The absentee's body could not be recovered due to the nature of

the catastrophic event; and

(B) evidence presented to a court of proper jurisdiction places the

absentee at the site of the catastrophic event on the date and at the time

of the event.

(3) Upon a finding of presumptive death, the district court shall order

the coroner in the county in which death occurred to prepare a death

certificate with the cause of death identified as due to the catastrophic

event in accordance with K.S.A. 2001 Supp. 65-2412(c) and 65-2414, and

amendments thereto.

(4) Upon receipt of the death certificate the office of vital statistics

shall register and make available for issuance certified copies of the death

certificate in accordance with K.S.A. 65-2401 et seq.

(5) If pertinent new information is received by the court, pursuant to

a court order, the presumptive death certificate may be amended in ac-

cordance with K.S.A. 65-2422c. In a case where the absentee is found to

be alive, the presumptive death certificate shall be rescinded.

(6) The secretary of the department of health and environment may

by rule and regulation prescribe forms and procedures to implement the

provisions of this act.

(b) For the purposes of this act:

(1) ``Catastrophic event'' means a disaster that will require massive

state or federal assistance, or both, including immediate military involve-

ment.

(2) ``Disaster'' means any natural, technological or civil emergency

that causes damage of sufficient severity and magnitude to result in a

declaration of a state of emergency by the governor or president of the

United States or a state of war emergency by the president of the United

States.

(3) ``State of emergency'' means the declaration of the existence of

conditions of disaster, catastrophe or extreme peril to the safety of persons

or property within the state caused by air or water pollution, fire, flood,

storm, epidemic, earthquake, resource shortages or other natural or man-

made conditions other than conditions causing a ``state of war emer-

gency'', which conditions by reasons of their magnitude are or are likely

to be beyond the control of the services, personnel, equipment and fa-

cilities of any single county or municipality, or both, and requires com-

bined forces of the state to combat.

(4) ``State of war emergency'' means the condition which exists im-

mediately, with or without a declaration by the governor, whenever this

state or nation is attacked by an enemy of the United States or upon

receipt by the state of a warning from the federal government indicating

an action against persons or society including but not limited to, emer-

gency attack, sabotage, terrorism, civil unrest or other action impairing

the orderly administration of government is probable or imminent.

Sec. 3. K.S.A. 59-2705 is hereby amended to read as follows: 59-

2705. (a) At any time, upon petition signed by the absentee or on a pe-

tition of an attorney-in-fact acting upon an adequate power of attorney

granted by the absentee, the court shall declare the absentee alive and

order the state registrar to rescind the presumptive death certificate and

direct the termination of the trust estate and the transfer of all property

held thereunder to the absentee or to the designated attorney-in-fact.

(b) Upon the petition of any person interested in the estate of an

absentee presumed to be dead, and on proof thereof in addition to all

other matters required by law to be proved for the appointment of an

administrator or executor, the district court shall proceed to administer

the estate of such absentee as if such absentee was known to have died

on the date of the filing of said such petition.

(c) Upon petition of any person interested in the estate of any person

reported by the United States department of defense as missing in action

for over three (3) years, the district court, upon proof that such person

has been reported as missing in action for over three (3) years, shall

proceed to terminate the trust estate of such absentee in the same manner

as the final settlement of a decedent's estate. The district court shall

proceed to administer the estate of such absentee as if said such absentee

was known to have died on the date of the filing of said such petition, but

the district court shall not declare the absentee to be deceased.

(d) All laws now or hereafter enacted for the administration of estates

of known decedents shall be applicable to absentees declared presump-

tively dead under section 2, and amendments thereto, and subsection (b)

of this section, except:

(1) No administrator, executor or personal representative of such ab-

sentee shall make a final distribution of the assets of such estate until the

expiration of three years after the date of presumptive death, provided

that assets in the estate of such absentee which are exempt from attach-

ment by creditors, including moneys paid by the United States of such

nature and other assets of any such estate which would otherwise be

available for the support of the spouse, children and other dependents of

such absentee, if such absentee were alive, after allowance for debts and

costs of administration, may be paid for the support of the spouse and

children and dependents of such absentee upon order of the court until

such time as distribution may be made or administration terminated. If

the absentee has not appeared after the period of three years the court's

finding shall become effective to permit final distribution of such person's

estate.

(2) Upon final settlement of the absentee's estate the provisions of

subsection (e) shall apply.

(d) (e) All laws now or hereafter enacted for the administration of

estates of known decedents shall be applicable to the settlement of estates

authorized by subsections (b) and (c), (c) and (d) except:

(1) If such absentee should return within five (5) years after entry of

the order of final settlement, any order made during such administration

shall be subject to being set aside on such absentee's application for good

cause shown and filed within three (3) months after such absentee

learned, or reasonably could have learned of such order; but setting aside

any such order shall not prejudice the rights of any person who has ac-

quired an interest in any property for value, or of any trustee, executor

or administrator who has acted in good faith in accordance with the pro-

visions of this act.

(2) No distributee of a share or interest in the estate shall receive or

be assigned the same on final settlement until said such distributee shall

have filed a bond conditioned that if said such absentee shall return within

five (5) years from receipt or assignment of the same and make claim

thereto, said such property, or the reasonable value thereof if it has been

disposed of, together with the net income therefrom, shall be returned

to the absentee.

The court may require sureties on said such bond, which sureties shall

be subject to the approval of the court. No action shall be brought on

such bond more than one (1) year after the absentee learned of such

distribution nor in any event more than six (6) years after the date of such

distribution.

Sec. 4. K.S.A. 59-2704 and 59-2705 are hereby repealed.

Sec. 5. This act shall take effect and be in force from and after its

publication in the statute book.

Approved April 15, 2002.


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Date Composed: 10/10/2002 Date Modified: 10/10/2002