The 2009 case of In re Sanchez and the 1998 ruling in Matter of Cosentino reveal the dual demands of New York’s presumption-of-death law: Sanchez shows the court’s unwavering requirement for documented, exhaustive search efforts, while Cosentino illustrates how evidence of a missing person’s character and stable life can justify an earlier declaration of death.
We’ve blogged about the need for forensic genealogists, legal translators and deposition interpreters in insurance litigation cases that often focus on proving the death of a U.S. insured policyholder in a politically unstable foreign country. In a different context, it so happens that in the courtrooms of New York’s Surrogate’s Court judges routinely grapple with one of the law’s most profound and painful tasks: declaring a missing person dead. This legal conclusion does not require a body, a witness, or a confession. Instead, it hinges on the meticulous assembly of a negative—proving, to a judicial standard, the sustained and inexplicable absence of life. Two cases, separated by a decade, delineate the exacting path families must walk. The 2009 case of In re Sanchez stands as a stark monument to procedural rigor, while the 1998 ruling in Matter of Cosentino offers a glimpse of substantive flexibility. Together, they reveal a legal doctrine that demands both exhaustive proof of diligent search and, in the right circumstances, a compassionate reading of a vanished life.
The Statutory Compass: EPTL 2-1.7
The journey for every petitioner begins with the same text: New York’s Estate Powers and Trusts Law § 2–1.7(a). The statute provides that a person absent for a continuous period of three years, “during which, after diligent search, he or she has not been seen or heard of or from, and whose absence is not satisfactorily explained shall be presumed… to have died three years after the date such unexplained absence commenced.” Critically, it allows an escape from this three-year default: death may be set at an earlier date if “clear and convincing evidence establishes is the most probable date of death,” particularly if the person “was exposed to a specific peril of death.”
The law thus establishes a clear, three-part burden: (1) an unexplained absence of three years with no communication, (2) a diligent search, and (3) if seeking an earlier date, clear and convincing evidence of a specific peril or a more probable date of death. The simplicity of this framework belies the complexity of its application, as Sanchez and Cosentino demonstrate.
In re Sanchez: The Diligent Search as a Documented Narrative
In re Sanchez, 22 Misc.3d 1128(A) (Surr. Ct., Nassau County 2009) the facts are haunting in their ordinary mystery. On August 30, 2001, Frank Sanchez Sr., a United States citizen, left his Baldwin, New York home with his brother to visit a friend at a business called Lizard Racing on eastern Long Island. He drove a white 1992 Chevrolet Lumina. Neither man ever arrived. The next morning, his wife filed a missing person’s report with the Nassau County Police. The family distributed flyers with photographs. Years passed. A 2006 police report requested by the family stated simply that Sanchez was “still missing.” By 2009, his son, Frank Jr., petitioned the court to have his father declared dead.
The petitioner’s affidavit painted a picture of a stable life with no motive for flight. Sanchez had been married for 30 years in what was described as a healthy marriage. He had a loving relationship with his children. No funds were missing from his accounts, and the family had faced no threats. He had vanished while on a routine, short-distance trip. On its face, the case for invoking EPTL 2-1.7 seemed strong: an unexplained absence far exceeding three years, no communication, and a plausible lack of motive for voluntary disappearance.
Yet, Surrogate John B. Riordan did not grant the petition. He deferred judgment, leaving the case open. The sole impediment was the second statutory element: “after diligent search.” The court’s analysis here is a lesson in defining what “diligence” means in a legal, rather than in a lay sense.
The court contrasted the evidence presented by the Sanchez family with the detailed record in Matter of Cosentino. In Cosentino, the petitioner provided police reports showing checks of hospitals and morgues for unidentified males, a forensic examination of the absentee’s abandoned vehicle, and evidence that the family had hired a company to search a nationwide missing persons database. The search was multi-faceted, institutional, and documented.
In Sanchez, the evidence was thinner. The family had filed a police report and distributed flyers. The petitioner had checked bank accounts. But as the court noted, “there is no evidence of what efforts were made by police and other family members to locate the whereabouts of the absentee.” There were no police reports detailing the scope of the investigation. There was no indication that hospitals or morgues had been checked. There was no evidence of database searches or forensic analysis. The flyers and the initial report, while commendable acts of a grieving family, did not constitute the “diligent search” required by the statute.
The court’s holding was precise and instructive: “Petitioner has demonstrated that the absentee has been missing for a continuous period of over three years… However, there is no evidence of what efforts were made by police and other family members… precluding, at this point, a determination that a diligent search was conducted.” The matter would remain open pending “additional affidavits or other evidence demonstrating what efforts were made.”
Sanchez teaches an important lesson: the burden of “diligent search” is an affirmative, documentable one. Grief and the passive passage of time are not enough. The petitioner must construct a paper trail that demonstrates that a diligent search using official channels has been conducted. The search must be systematic, thorough, and evidenced by records—police reports, investigative summaries, official queries. It is not sufficient to show that a person is missing; one must show the machinery of search has been engaged and has failed. The case places the onus on petitioners to be archivists of absence, collecting not just proof that their loved one is gone, but proof that they tried, through every reasonable avenue, to find them.
Matter of Cosentino: The Specific Peril of a Well-Lived Life
While Sanchez illustrates the strict gatekeeping function of the “diligent search” requirement, Matter of Cosentino, 177 Misc.2d 629 (Surr. Ct. Bronx County 1998) shows how courts can exercise flexibility once that gate is passed, particularly regarding the date of death. Joseph Cosentino, a New York City firefighter, disappeared on the night of July 17, 1994, after leaving home to handle a Snapple delivery issue. His car was found three years later, in 1997, forensically examined with no clues. His wife sought a declaration that he died on the date of his disappearance, not three years later, which had significant implications for employment death benefits.
The court first had no trouble finding a “diligent search” was met, citing the extensive police investigation, checks of hospitals and morgues, the car examination, and the use of a national missing persons database. With the presumption of death triggered, the contest was over the timing of death. The statute’s default is three years after disappearance, but it allows for an earlier date if the person was “exposed to a specific peril of death.”
Surrogate Lee L. Holzman’s opinion performs a subtle but significant expansion of “specific peril.” He acknowledges that Cosentino was not lost at sea or in a plane crash—the classic “specific perils.” However, the court looked to the common law history of the presumption, noting that even under the old seven-year rule, courts would rebut the end-of-period presumption with evidence of the absentee’s character and habits, which made voluntary abandonment improbable.
The court then wove the facts of Cosentino’s life into a compelling narrative that itself constituted a “peril.” He was gainfully employed as a firefighter and a business owner. He had a happy marriage and a child on the way. He visited his children from a prior marriage, his parents, and his siblings weekly. He left behind all his possessions, his passport, and his money. Critically, the court found the idea that such a man would voluntarily abandon his life to be so contrary to his established character as to be “monstrous” and illogical. Therefore, the most probable conclusion, supported by “clear and convincing evidence,” was that he died on or about the night he vanished. The “specific peril” was not a single hazardous event, but the totality of a responsible, embedded life that made disappearance itself the evidence of death.
Cosentino thus illuminates a second path. It shows that when the procedural foundation of a diligent search is firmly laid, the law can accommodate a nuanced, fact-intensive analysis. “Specific peril” can be interpreted as a compelling circumstantial case that death at an earlier date is more logical than a voluntary disappearance, based on the indelible portrait of the missing person’s life.
The Two Pillars of Adjudicating Absence
Read together, Sanchez and Cosentino establish the dual pillars of jurisprudence under EPTL 2-1.7.
The first pillar, exemplified by Sanchez, is procedural rigor. The court functions as a gatekeeper, ensuring the statutory prerequisites are not taken lightly. The “diligent search” requirement forces petitioners to engage with official institutions and create a verifiable record. It protects against declarations based solely on sorrow or the mere lapse of time, ensuring the legal finality of death is grounded in documented societal effort.
The second pillar, exemplified by Cosentino, is substantive flexibility. Once the court is satisfied that a genuine, documented search has occurred, it can engage in a holistic assessment. The “clear and convincing evidence” standard for an earlier date of death allows judges to consider the logic of a life. A stable character, strong family ties, and the absence of motive for flight can collectively form a “specific peril”—the peril of acting wholly out of character, which is so improbable that death becomes the more reasonable inference.
Navigating Absence
The cases of Frank Sanchez and Joseph Cosentino remind us that the law of presumed death operates in the difficult space between knowledge and mystery. Sanchez insists that families must bring the state’s investigative power to bear on the mystery, proving that the unknown has been actively, if fruitlessly, confronted. Cosentino acknowledges that when the mystery remains after such a confrontation, the law can look to the known—the solid contours of a person’s life—to draw the most reasonable conclusion about the unknown.
For practitioners, the lesson is to build a two-part case: first, a bulletproof, documented dossier of search efforts; second, a rich, detailed portrait of the absentee’s life and character. For families, these cases outline a painful but necessary journey: transforming personal loss into a public record, and personal memory into legal evidence. Ultimately, New York’s approach, as reflected in these twin decisions, seeks a dignified balance. It demands rigorous proof that a person is gone, while remaining open to the stories that tell us who they were, ensuring that the legal declaration of death honors the complexity of the life that preceded it.
Get in touch with legal translators, court interpreters and forensic genealogists at All Language Alliance, Inc. for assistance with certified legal document translation services, deposition interpreting services and with reasonably exhaustive genealogical research services to prove the presumption of a missing person’s death.
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