The common law has traditionally recognized a cardiopulmonary definition of death; that the individual is dead once the heart and lungs have ceased operation[i].  Under current medical science, the capacity for life is irretrievably lost when the entire brain, including the brain stem ceases functioning.  Therefore, the law has recently decided that brain death is the legal equivalent of death[ii].

The Uniform Determination of Death Act provides that an individual who has sustained either irreversible cessation of circulatory and respiratory functions, or irreversible cessation of all functions of the entire brain, including the brain stem, is dead.  However, a determination of death must be made in accordance with the accepted medical standards.  A number of jurisdictions have adopted this dual benchmark for determining what constitutes “death”[iii].  In other jurisdictions, the statutes create a “whole-brain death” exception to the common-law cardiopulmonary definition of death whenever the cardiopulmonary function is being maintained artificially[iv].

Fetal death is proved by:

• the absence of a heartbeat,
• lack of pulsation of the umbilical cord, and
• lack of definite movement of voluntary muscles[v].

Until the contrary is shown by sufficient proof, life is conclusively presumed to continue[vi].  Generally, the burden of proving a death is on the person who asserts the death[vii].  Presumptions as to death founded on a reasonable possibility prevail over those based on mere possibilities[viii].  Statutes may create presumptions of death based on certifications of status.  Statutes may also create a presumption of death based on absence for a statutorily set period. A presumption of death will arise for only one particular purpose[ix].  The burden of proof shifts to the party asserting life to rebut the presumption, once a presumption of death is deemed to apply[x].

The direct testimony of a witness to the fact is the most satisfactory proof of death[xi].  By showing evidence of a positive sign of life in one body and the absence of any such sign in the other, a lay testimony about the death of a person may meet a party’s burden of proving survivorship[xii].  However, the question of “at what moment” a person died is a question of fact to be determined by expert medical testimony[xiii].  It is the role of the medical profession to decide whether brain death or other cessation of cardiopulmonary function is present in accordance with current medical standards.  Judicial intervention should be limited to a review of the procedures followed[xiv].

Death may be established by indirect evidence[xv].  The Uniform Probate Code § 1-107(4) expressly provides that the fact of death may be established by circumstantial evidence in the absence of a certified death certificate or other certified official record of death.  Where a proper showing is made as to the authorship or authenticity of the entries as a part of the family record and better evidence is not available, the entries in a family record or Bible are admissible as evidence in matters of pedigree, in order to prove the death of a person[xvi].

An official registry of death is competent evidence to establish the death of a person[xvii].  A certified copy of the record of a certificate of death is competent evidence[xviii].  Generally, a death certificate is admissible as proof of death[xix].  For the purpose of trial, the suggestion of the death of a plaintiff in the record and an order to make his or her devisees parties may be prima facie evidence of death[xx].

A death certificate may be prima facie evidence of the facts stated therein[xxi].  Statements concerning the occurrence of and the date of death are statements of fact[xxii].  Uniform Probate Code § 1-107(2) provides that a certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date, time of death, and the identity of the decedent. Moreover, a death certificate may not be conclusive proof of the actual time of death, in the absence of such a statutory mandate[xxiii].  However, a death certificate may not be competent proof of the cause of death, although it is competent as a proof of death[xxiv].

[i] In re T.A.C.P., 609 So. 2d 588 (Fla. 1992)

[ii] In re Welfare of Bowman, 94 Wash. 2d 407, 617 P.2d 731 (1980)

[iii] People v. Selwa, 214 Mich. App. 451, 543 N.W.2d 321 (1995)

[iv] In re T.A.C.P., 609 So. 2d 588 (Fla. 1992)

[v] Maher v. Yoon, 297 A.D.2d 361, 746 N.Y.S.2d 493 (2d Dep’t 2002).

[vi] In re Starr, 104 Cal. App. 4th 487, 128 Cal. Rptr. 2d 282 (1st Dist. 2002)

[vii] In re Starr, 104 Cal. App. 4th 487, 128 Cal. Rptr. 2d 282 (1st Dist. 2002).

[viii] In re Thornburg’s Estate, 186 Or. 570, 208 P.2d 349 (1949)

[ix] Kansas Farm Bureau Life Ins. Co., Inc. v. Farmway Credit Union, 256 Kan. 968, 889 P.2d 784 (1995)

[x] In re Starr, 104 Cal. App. 4th 487, 128 Cal. Rptr. 2d 282 (1st Dist. 2002).

[xi] Power Equipment Co., Inc. v. First Alabama Bank, 585 So. 2d 1291

[xii] Estate of Sewart, 236 Ill. App. 3d 1, 177 Ill. Dec. 105, 602 N.E.2d 1277 (1st Dist. 1991)

[xiii] Estate of Sewart, 236 Ill. App. 3d 1, 177 Ill. Dec. 105, 602 N.E.2d 1277 (1st Dist. 1991)

[xiv] Alvarado by Alvarado v. New York City Health & Hospitals Corp. 145 Misc. 2d 687, 547 N.Y.S.2d 190 (Sup 1989),

[xv] Ligon v. Metropolitan Life Ins. Co., 219 S.C. 143, 64 S.E.2d 258, 26 A.L.R.2d 1064 (1951)

[xvi] Lewis v. Marshall, 30 U.S. 470, 8 L. Ed. 195 (1831); Ewell v. Ewell, 163 N.C. 233, 79 S.E. 509 (1913); Campbell v. State, 21 Okla. Crim. 242, 206 P. 622, 29 A.L.R. 369 (1922).

[xvii] Commonwealth v. Slavski, 245 Mass. 405, 140 N.E. 465, 29 A.L.R. 281 (1923)

[xviii] Bozicevich v. Kenilworth Mercantile Co., 58 Utah 458, 199 P. 406, 17 A.L.R. 346 (1921)

[xix] State v. Fakes, 51 S.W.3d 24 (Mo. Ct. App. W.D. 2001)

[xx] Stebbins v. Duncan, 108 U.S. 32, 2 S. Ct. 313, 27 L. Ed. 641 (1883)

[xxi] Allstate Ins. Co. v. Holcombe, 132 Ga. App. 111, 207 S.E.2d 537 (1974)

[xxii] People v. Holder, 230 Cal. App. 2d 50, 40 Cal. Rptr. 655 (3d Dist. 1964)

[xxiii] In re Estate of Price, 62 Ohio Misc. 2d 26, 587 N.E.2d 995 (C.P. 1990)

[xxiv] Bailey v. State, 623 So. 2d 704 (La. Ct. App. 4th Cir. 1993)