I’m not dead yet! Resurrection and Probate Law

Superheros and supervillians too numerous to count have, for various reasons, been killed, lost, or otherwise presumed dead, only to come back at a convenient date. It’s gotten a little silly at times.

The legal system has pretty well-established rules for what to do when someone dies. If they’ve got a will, their property will generally be distributed according to its dictates (no naughty trying to disinherent current spouses!) and if they don’t have a will, i.e. they die intestate, the law is pretty clear about how their estate is to be distributed. Most states have adopted some version of the Uniform Probate Code, or UPC, which other than the UCC and MPC is actually one of the more successful uniform laws in terms of its adoption by the various states.

The law even has a way of handling situations where a person is not actually known to be dead but is clearly no longer around. A person who is legally absent, i.e. a person whose whereabouts are unknown for quite some time, will generally be presumed dead after a few years. Five to seven is pretty common, though interestingly for the citizens of Metropolis, New York only give you three (NY CLS EPTL § 2-1.7). It usually takes a court proceeding to get someone officially declared dead in the absence of a body, and in general, the courts will presume that a person is alive until there is clear evidence to the contrary or state statue operates to force presumption.

That last bit is actually of interest to our consideration of law and the multiverse. Pretty much every state has a statute saying that if one is legally absent for a specified period of time, a court can declare one to be dead. But a few states also have a provision that exposure to a “specific peril of death” can permit a court to rule one dead before the specified period expires. See, e.g., 20 Pa. Cons. Stat. § 5701(c). As superheros are exposed to specific perils of death basically all the time, and would not generally be suspected to be dead in the absence of such a peril, it seems likely that a court, or at least a genre blind one, would be willing to rule on a superhero’s death pretty quickly. Which makes things a bit complicated if they aren’t actually dead.

So what happens when, after they have been declared dead, a person turns up again? The Straight Dope has a good article on this subject, so I shall attempt to avoid repeating that discussion here, but their discussion of a rather interesting case on the subject could stand to be expanded.

Southern Farm. Bureau Life Ins. Co. v. Burney, 590 F.Supp. 1016 (E.D.Ark. 1984) is the big case here. In 1976, John Burney of Helena, Arkansas, ran into financial difficulties. On June 11, he was involved in a traffic accident on a bridge crossing the Mississippi River and managed to clamber over the railing and down the bridge into the river, where he swam to Mississippi instead of back home to Arkansas. He caught a bus and spent the next six years living in Florida as “John Bruce,” complete with a new wife and child, neither of whom had any inkling of his former life. He returned to Arkansas in 1982 to visit his father and was discovered. Unfortunately for him, Burley’s wife and business partners had filed claims on various life insurance policies taken out on him and received benefits totaling $470,000. The wife, who may have been annoyed at finding out that her husband had completely abandoned his family and set up another one, contacted the insurer immediately. The insurer was annoyed and promptly sued Burley into next Tuesday.

Here’s where things get interesting for whack-a-mole-type supers: Burley’s wife and business partners, who had no knowledge of Burley’s whereabouts and had assumed that he had died in the accident, wound up a total of $470,000 richer. The judge let them keep that money, theorizing that “the policy of the law is to encourage settlement of litigation and to uphold and enforce contracts of settlement* if they are fairly arrived at, not in contravention of law or public policy.” (Id. at 1022). Burley wound up being found liable for $470,000 plus interest–whether or not he paid is another matter–but the people who received property as a result of his death were permitted to keep it.

The implication here–and there really isn’t much case law beyond this, because most people who are presumed to be dead are actually dead–is that if a person dies or is presumed to be dead, courts are not going to be very eager to disturb the settlement of property distributed via inheritance or devise unless there is a clear statutory reason to do so. Many states have statutes addressing this subject, but they’re all over the place.

– Cal. Prob. Code § 12408 specifies that a person who reappears after being presumed dead may recover any of his estate which has not been distributed, but property that has been distributed is only recoverable if it is “equitable under the circumstances,” and not at all if five years have passed.

– Va. Code Ann. § 64.1-113 provides that property which has not been distributed and property which is in the hands of someone who received it as a result of the presumption of death shall be returned to the person presumed dead, but bona fide purchasers of estate property are allowed to keep it. Pennsylvania takes a different approach.

– 20 Pa.C.S. § 5703 requires that if a person is declared dead in whole or in part on the basis of his continued absence, no property can be distributed out of his estate without the distributee posting a bond for the value of the property. Clearly, a superhero who fears that he may erroneously be declared dead at some point should consider moving to Philadelphia.

– New York doesn’t seem to have a statute on this subject at all, meaning that any property distributed because a person is presumed to have died could be pretty difficult to get back.

So this really becomes a question of the state’s law where our supposedly deceased character’s will or estate would be probated. A returning or resurrected character could find that they get back most of the property they lost, or they could wind up with nothing. The longer they take to come back, the more likely the second outcome is.

*Apparently the insurance company never thought that Burley was dead, but it chose to settle with the claimants rather than fight. The judge reasoned that they had figured the likelihood of Burley actually being alive into their settlement.

21 responses to “I’m not dead yet! Resurrection and Probate Law

  1. As superheros are exposed to specific perils of death basically all the time, and would not generally be suspected to be dead in the absence of such a peril, it seems likely that a court, or at least a genre blind one, would be willing to rule on a superhero’s death pretty quickly.

    This is true of superheroes, but what of their alter-egos? It might be preferable for the true nature of the person to remain a secret even after death (e.g., plot convenience, obviously, but also to avoid claims against the alter-ego’s estate based on the superhero’s actions). This could give rise to the awkward situation in which the heirs or executors who know the truth must wait until the longer statutory period passes for the alter-ego to be declared dead.

    It might be worth it for a superhero to establish a dangerous hobby for his or her alter-ego, perhaps hiking in the wilderness or exploring caves alone. That could give his or her heirs or executors the cover needed to have the alter-ego easily declared dead if the superhero is killed in action.

    • If the heirs or executors were aware of the underlying fraud in establishing the alter-ego in the first place then they would be acting fraudulently in concert in any resolution of that estate, especially with regard to life insurance. Obviously in the situations where the “alter” ego is the original identity of the hero (e.g. Bruce Wayne, Peter Parker) fraud would only involve the hero identity’s estate. But Lois Lane collecting on a life insurance policy for a Clark Kent would be fraud, even if Superman/Kal-El were to die. The underlying contract for the insurance was entered into in bad faith, and anyone knowingly collecting on the policy would be a participant in the fraud.

      • What fraud? I’d assume that the secret identity was the original, given name. Don’t see how Lois Lane is committing fraud by claiming life insurance for Clark if Clark dies, so long as she doesn’t actually make fraudulent statements about how it occurred and just lets them assume it happened while he was on overseas assignment or something.

      • Superman is the real identity though. We only think of Clark Kent as the secret identity because that’s the non-super hero identity.

      • What does that have to do with it? Supes was raised as Clark Kent, works at the Daily Planet as Clark Kent, and presumably files his taxes and insurance as Clark Kent.

        And for the record, I think there are three “identities” in Superman: the clumsy, shy Clark Kent that his friends at the DP know, the friendly, noble Clark that his fellow Justice League members know, and the fearless, invincible hero that the public sees as Superman.

  2. Well now, I am from Philadelphia… Now I just need to work on becoming a Super Hero. By the way, at the opening of paragraph six you refer to “Southern Farm. Bureau Life Ins. Co. v. Burney”, you go on to refer to the defendant as “John Burney”, but by the end of the paragraph and for the rest of the article you spell the last name “Burley”. This oversight should probably be corrected. But other than that this is a fascinating article.

  3. I can’t believe I’m leaving a comment here, but…

    If superheroes were part of the accepted landscape, wouldn’t able and far-sighted lawyers have taken advantage of making sure coverage for their “special circumstances” were written into policies?

    Or would their super-power, including resurrection, be viewed as a pre-existing condition? Could resurrection be viewed as a disease? Since old-style NixonCare doesn’t really work unless the insured died — would insurance companies be any more willing to insure MoxyMan than they would a bull-rider?

    Could Jesus get insurance?

    • If superheroes were part of the accepted landscape, wouldn’t able and far-sighted lawyers have taken advantage of making sure coverage for their “special circumstances” were written into policies?

      Probably, but in most comics the law and legal institutions seem to be similar or identical to our own. There are police, prosecutors, defense lawyers, judges, juries, prisons, etc. People aren’t promptly convicted by psychic judges, and supervillains aren’t imprisoned on the Moon in a prison built by Superman. So the premise of this blog is that, unless stated otherwise (e.g. the Keene Act), the law in the comic book universe is the same as ours, so we try to explain how the law and the facts can fit together. If that leads to a contradiction (e.g. Batman is clearly not actually a state actor in the DC universe), then we try to figure out the least disruptive ‘patch’ to the law that solves the problem. If we’re really at an impasse, well, it’s a comic book. It doesn’t all have to make sense.

      Your points are great, though. A superhero who had a bad habit of dying and coming back to life would probably find life insurance very expensive indeed. On the other hand, since he or she has said bad habit, then maybe he or she wouldn’t need life insurance. Or maybe the insurance company would insist on a clause that, in this particular case, no payout would be made until the insured had been deceased for at a few years. Call it a “retcon avoidance” clause.

  4. I am sure Dan Slott’s run on She-Hulk, with her joining a law firm dedicated to superhuman legal affairs, would have eventually got around to probate law if he had stuck around on the title.

    How many payouts must Scott Summers have received from dead spouses? I am sure he is on an insurers blacklist somewhere in the MU.

  5. If superheroes have been around a while, the legal system will have evolved to take them into account. The big two superhero universes both let superheroes testify in court in masks, for instance.

    I think when analyzing superhero law we have to assume that certain things which are endemic to the genre are made legal. Of course how far you go with that is up to you, but the discussion can often be more interesting if you assume they are. What exactly would the law be like if the laws were actually written specifically to deal with resurrections and immortals?

    • :The big two superhero universes both let superheroes testify in court in masks

      There is a real-world analogue to that situtation: undercover officers. Until the late 80s in Australia, UCs had to testify under their real names. But then UC Michael Drury was shot at in his home. The law was changed to allow UCs to testify under their false identity.

  6. The Pathetic Earthling

    I just found this blog and while I don’t use the word “hero” very often, you are the greatest hero in American history.

  7. Hey gang,

    I am completely enthralled by this blog and wanted to extend an offer to speak at one of our lecture events. Take a gander at our nerdnite.com website and let me know if there is an NN near you if you are interested.


    • Unfortunately, neither of us live closer than three hours to any of the cities where you currently have operations. We’re already disappointed about that.

  8. “It’s just. Eagle. Actually.”

  9. Southern Farm v. Burney reminds of the Flitcraft case – a story told by Sam Spade in The Maltese Falcon. Flitcraft vanished from Tacoma with no explanation or motive, leaving behind a wife, children, and a successful business. Years later, he was discovered in Spokane, with a new wife, family, and business…

    Burney (and I’m sure some other cases) rather destroy the plots of two Robert Heinlein novels: Citizen of the Galaxy and Stranger in a Strange Land. In both stories, an heir appears many years after the death of the testator(s) and is awarded title to the property in the estate.

  10. I don’t know if any insurance company would actually be willing to cover a superhero that regularly put himself in harms way. But maybe the average superpowered person who didn’t want to be a hero might have a chance. I think the more important issues raised here deal with how the rest of the estate gets divided up and how a superhero gets it back if he/she (Phoenix please come back, I can’t take Emma Frost anymore) comes back. I’m sure Xavier probably has a giant trust fund set up to filter that.

    Btw, found this blog through a friend – loving it!

  11. So, as and estate and elder law attorney and superhero fan, I have been pondering for a long time what happens when these heroes age. Do those with super powers face the deterioration of aging? If so, would they be allowed in the standard, run of the mill assisted living facility or would we have to develop special facilities to handle their powers? How do you control a dangerous super power with a mildly demented brain? Shouldn’t they all be putting away (or insuring) for specialized care when their bodies or brains begin to fail them? Can you imagine Wolverine with Parkinson’s in a regular assisted living facility?? My mother eats the curtains in her nursing home, that is annoying enough for the staff, can you imagine what Wolverine without motor control could do?

    Just food for thought. Maybe you could address the long term care needs of superheroes, (what company on earth would be willing to insure them, and what would those premiums look like) or is it assumed that they do not age? I am assuming that Batman, Ironman and most of the X-Men are subject to aging just like us “normal” people.

    Carry on, I love the site!

  12. hello – can i throw a cat among the pidgeons.

    have you considered other heros like the phantom – he has been around for generations, amassed wealth and survived without too many people realising he isnt the same person.

    he for all intensive purposes lives ina jungle – away from ‘civilisation’ and the family name is the same but teh christian name rotates. Also all his wealth is kept on site in the form of jewels and gold – items that can be readilly dispursed into cash if the time needs. also by having vast stock piles of these he has no real need for a bank account etc.

    just an idea.

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