In Re Starr

Certified For Partial Publication. [*]

The Old Line Life Insurance Company of America appeals from an order granting the petition to establish the fact of death of its insured, Barry Starr, filed by respondents Linda Michelson Starr, Starr's former wife, and his sons, Adam and Jeffrey, and appointing respondents personal representatives for Starr's estate. Probate Code section 12401 (hereafter § 12401) provides that "a person who has not been seen or heard from for a continuous period of five years by those who are likely to have seen or heard from that person, and whose absence is not satisfactorily explained, after diligent search or inquiry, is presumed to be dead. The person's death is presumed to have occurred at the end of the period unless there is sufficient evidence to establish that death occurred earlier." The court applied this presumption of death in Starr's case, and found that he died on June 9, 1994, five years after he disappeared. The court erred in applying the presumption because there was a satisfactory explanation for Starr's absence other than his death. We therefore reverse.

Starr was an engineer, educated at the Massachusetts Institute of…