Missing in Action in War: When Can a Court Declare a Person Dead and What Documents Are Needed

Declaring a person who went missing in action during the war as dead is a separate judicial procedure that helps eliminate legal uncertainty for their relatives. Thanks to this, relatives can process inheritance, receive a pension due to the loss of a breadwinner, terminate marriage, and resolve other property and family matters.

The main regulatory act in such cases is Article 46 of the Civil Code of Ukraine.

The general rule provides that a person can be declared dead if there is no information about their whereabouts for three years. However, if the person disappeared under circumstances that directly threatened their life, including as a result of an accident, this period is shortened to six months.

For persons who went missing in action during the war, the law establishes a special procedure.

A person who went missing due to military actions or armed conflict can be declared dead by the court after two years from the day the hostilities ended.

At the same time, the court, taking into account the specific circumstances of the case, may make such a decision earlier. However, this is possible no earlier than six months after the occurrence of circumstances that posed a threat to life or give grounds to assume the person's death.

Also, in such cases, the Law of Ukraine "On the Legal Status of Persons Missing under Special Circumstances" No. 2505-VIII dated July 12, 2018 (as amended) applies. The document defines the procedure for granting the status of a person missing under special circumstances, including during military actions or armed conflict, and regulates the maintenance of the Unified Register of such persons.

The presence of this status does not deprive relatives of the right to apply to the court with a petition to declare the person dead. On the contrary, it can be an important piece of evidence during the case consideration. This was reported by the Kherson Court of Appeal.

The Grand Chamber of the Supreme Court, in its ruling dated December 11, 2024, in case No. 755/11021/22, provided key clarifications regarding the calculation of timeframes:

• The six-month period is not tied to the cancellation of martial law in Ukraine as a whole or the end of hostilities throughout the country.
• It is counted from the day active hostilities ended at the location (place) of the probable death of the person or from the day of the specific event that caused the death (for example, missile strike, mine explosion, shelling), even if the event occurred outside the zone of active hostilities but as a result of military actions.
• Martial law ≠ hostilities. There is no need to wait two years after the cancellation of martial law throughout the country.

Lower courts actively apply this position, evaluating each case individually (place of disappearance, testimonies, documents from the military unit, police, etc.).

Declaring a person dead is a presumption of death based on indirect evidence. A person is declared dead from the date the court decision comes into legal force, although in some cases the court may indicate the probable date of death (part 3 of article 46 of the Civil Code of Ukraine).

The petition to the court is submitted by close relatives (spouse, children, parents) to the local general court at their place of residence or at the last known place of residence of the missing person—in a separate proceeding (articles 305–309 of the Civil Procedure Code of Ukraine).

The petition must be accompanied by evidence of the person's disappearance, including a certificate from the police, military unit, or documents granting the status of "missing under special circumstances," as well as documents confirming the circumstances that threatened life and evidence of the absence of any information about the person during the required period.

Previously, the "Judicial and Legal Newspaper" wrote about why the court in Zhytomyr refused to declare a soldier missing in action in Kursk region dead.

We also reported that the Supreme Court defined the rules for calculating timeframes for declaring a serviceman dead.

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