The recent sinking of the El Faro and the fate of its crew members raise unique issues for the probate of the estates of the crew members in Florida. The owners of the El Faro have agreed to pay the legal fees for the families of the crew members to establish that the crew members died under circumstance that preclude the issuance of a normal death certificate, i.e., a ship sinking in international waters. But, how does one establish there was a death when there is no body and no eyewitnesses or other direct evidence of death? How will the families of the El Faro crew members be able to administer the estates of their deceased loved ones?

The First Step

Florida Statutes, Section 731.103, requires that the first step in a probate proceeding is to establish the death of the person whose estate is to be probated. In the ordinary course of handling such matters, the attending physician merely certifies a death certificate reflecting the date and cause of death of the deceased. Florida probate law provides that an “authenticated copy of a death certificate issued by an official agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date, and time of death and the identity of the decedent.” Florida Statutes, Section 731.103(1). In the case of the El Faro, there was no attending physician to issue a death certificate.

Florida Probate Rule 5.205, provides that a copy of an official record of the death of a decedent must be filed by the personal representative (the executor) not later than three months following the date of the first publication of the notice of administration. That notice is published immediately upon filing with the probate court a petition to administer the probate estate.

How does someone establish the “fact, place, date, and time of death and the identity of the decedent” when there is no authenticated copy of a death certificate from an official agency where the death occurred?

The Fact of Death Must Be Established Through Evidence Presented to the Court

Florida Statutes, Section 382.012, provides that where the death of a Florida resident has occurred, but the body of the person involved has not been located or recovered, the Florida Department of Vital Statistics is required to file a “presumptive death certificate” when ordered by a court of competent jurisdiction. The fact of death, and its place, date and time, must be established through evidence presented to the court – typically the Florida probate court.

The Florida Statutes, Section 731.103(3) provides for the establishment of a presumption of death. That statute provides the procedure to judicially establish the presumption of death. The standard of proof is whether the circumstantial evidence of death is a preponderance of all reasonable inferences that can be drawn from the evidence presented that the evidence is not reasonably susceptible of two equally reasonable inferences.

The Florida cases of Woods v. Estate of Woods, 681 So.2d 904 (Fla 4th DCA 1996), and Andrews v. Estate of Andrews, 140 So.3d 760 (Fla 5th DCA 2014), found that the standard of proof was met when the man whose estate was sought to be opened literally “went down with the ship” in the middle of a hurricane. The facts relied on by the courts were that (1) he was a crew member of the ship that sank, and (2) that he was not among the survivors who were rescued. The Florida appellate courts found that nothing more was needed for it to properly reach the conclusion that he died at sea.

Circumstantial Evidence Creates Presumption of Death

The burden is on the person petitioning for the administration of the probate estate to establish the presumption of death. In the El Faro case, the United States Coast Guard is the agency who will provide certification that the ship sank with no survivors. In other cases, the circumstantial evidence to create the presumption of death will be necessary to convince the judge or jury that the evidence is not reasonably susceptible of two reasonable inferences.

Upon the probate court’s determination that there has been a death, the decedent’s probate administration will proceed as probate cases do normally. The probate judge will enter an order directing the Bureau of Vital Statistics to issue a presumptive death certificate for the personal representative’s, or other family members’, use to take control of the decedent’s assets, obtain life insurance proceeds, or any other assets that require proof of death to recover.

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