From provisional possession to the absentee’s presumed death

They are Sections Three to Six of Chapter IX of Title I of Book One of the Civil Code of 2020, Articles 194 to 209. It is the second half of the absence file: what happens to the property as the years pass, when the person may be treated as dead, and what happens if one day they return.

Provisional possession may be requested by the spouse, the partner in a relationship of affection analogous to marriage, the presumed legitimarios or, failing those, the creditors. Presumed death may be requested by those same persons, plus the closest relatives or associates, other persons with a legitimate interest in the patrimony, or the ministerio público.

• For provisional possession: that three years have passed since the property was placed under administration or tutelage without the absentee appearing and with no news of their whereabouts.Verified against the official source
• That the conjugal economic regime be liquidated, if the absentee was married and it was not done before; provisional possession falls on their own property and their share in that liquidation.Verified against the official source
• That the provisional possessor post the guarantees the court requires, unless exempt, and render periodic and final accounts.Verified against the official source
• For presumed death: evidence from which it may reasonably be inferred that they died, or ten years since the declaration of absence with no sign of life, or ninety years since their birth, whichever occurs first.Verified against the official source
• That the declaration of presumed death state the date from which the death is considered to have occurred.Verified against the official source
• Publishing the declaration of absence by edict in three newspapers of general circulation, and recording it in the Registro de Ausentes thirty days after the last publication.Verified against the official source

• Faithful and certified inventory of the property the tutor or administrator hands to the provisional possessor, with the accounts of their management.
• For the return: indubitable proof of the identity of the person who turns up alive.

1. 1

   Step 1: Three years: provisional possession may be requested

   If at the end of the three-year period, counted from when the property is placed under administration or tutelage, the absentee has not appeared in person or through a representative, or there is no news of their whereabouts, their spouse, their partner in a relationship of affection analogous to marriage, their presumed legitimarios, or failing those their creditors, may request and obtain the provisional possession of their property. If the absentee was married the conjugal economic regime will be liquidated, if not done before, and provisional possession will fall on the absentee’s own property and the share corresponding to them in that liquidation.

2. 2

   Step 2: The tutor hands over, renders accounts and is released

   Once provisional possession is decreed, the tutor or whoever is in charge of the administration will render the accounts of their management and deliver to the court a faithful and certified inventory of the property handed to the provisional possessor. Once the final accounts are approved and the inventory corroborated, the court will release the administrator or tutor from all liability over the patrimony delivered and will extinguish the guarantees they posted.

3. 3

   Step 3: What the possessor may and may not do

   The person entering possession must post the guarantees the court requires to secure the protection and conservation of the property, unless exempt, and those guarantees will not exceed the probable amount of the harm their bad administration could cause. The provisional possessor makes the fruits of the property in their charge their own, but may not dispose of or encumber it except in a case of need or evident usefulness recognized and declared by the court, which on authorizing it will determine the use of the sum obtained. The court may also order the movable property to be sold and the proceeds invested in immovables or placed in safe investments.

4. 4

   Step 4: Ten years, or ninety since birth

   The court will declare the absentee’s presumed death in three cases, whichever occurs first: when evidence is presented from which it may reasonably be inferred that they have died; when ten years have passed since their absence was declared and the absentee has given no sign of life and their whereabouts or circumstances remain unknown; or when ninety years have passed since their birth. It may be requested by the spouse or the partner in a relationship of affection analogous to marriage, their legitimarios, closest relatives or associates, other persons with a legitimate interest in their patrimony, or the ministerio público.

5. 5

   Step 5: What the declaration of presumed death does

   The final declaration of the presumption of death allows the absentee’s succession to be opened and the partition and adjudication of their property among the heirs to proceed. Every declaration must state the date from which the death is considered to have occurred, and it is presumed the absentee lived until that moment. The tutor or provisional possessor will present a faithful and certified inventory and render the final accounts to the legitimarios, within the same file of the declaration of absence.

6. 6

   Step 6: The recording in the Registro Demográfico

   Once presumed death is declared, the court will order the death recorded in the Registro Demográfico, stating the date and the cause of the presumed death if it can be established. The Registrar will note on every certificate of presumed death the number of the judicial file in which the declaration of absence was heard, and will also note the date of the declaration in the Registro de Ausentes.

7. 7

   Step 7: If the person turns up alive

   If the absentee presumed dead turns up alive, on presenting indubitable proof of their identity they will ask the court for the summary cancellation of the record of their death and the restitution of the civil status corresponding to them. The same petition may be made by someone who knows and can irrefutably prove their existence, even if they are not in Puerto Rico. The return authorizes them to recover the possession and ownership of their property: they receive it in the state it is in, the price of the part disposed of, or the property acquired with the proceeds of that sale. The fruits and yields correspond to them from when they requested them from whoever held them. And if a third party proves by reliable document having acquired property from the absentee, the tutelage or provisional possession ceases as to that property.

8. 8

   Step 8: Four years to claim about the property

   If the returning absentee has any claim about the state of their property, they will file it in the same file of the declaration of absence within a caducity period of four years, counted from when the resolution approving the final accounts was recorded in the Registro de Ausentes. Depending on the complexity, the court may resolve it summarily or order an ordinary trial. Mind the word caducity: that period is not interrupted the way a limitation period is.

9. 9

   Step 9: The edict, the register and the powers that lapse

   Every declaration of absence is publicized by an edict in three newspapers of general circulation, notifying the absentee and any interested person. Thirty days after the last publication, the declaration is ordered recorded in the Registro de Ausentes, administered by the Registro Demográfico. Once recorded, mandates of every kind granted by the absentee are extinguished as of right. And annually the official in charge of the Register will examine the records to verify that the reports and accountings are complied with, will notify the court of the result so it may order the necessary precautionary measures, and will issue certified copies to any party with legitimate interest.

Everything is heard in the same file of the declaration of absence, before the Court of First Instance. The recording of the death and the Registro de Ausentes belong to the Registro Demográfico.

• Distributing the property under provisional possession: that only comes with the final declaration of presumed death.
• Selling or mortgaging the absentee’s property without judicial authorization.
• Counting the ten years from the disappearance rather than from when absence was declared.
• Letting the four-year caducity period to claim after the return lapse.
• Publishing the edict in a single newspaper when the Code asks for three of general circulation.
• Continuing to use a power of attorney from the absentee after the declaration is recorded in the Registro de Ausentes.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov