Tom Asimou and Kaysey Fung

AZ We See It

Over 1%2C000 cases of missing persons in Arizona have been registered with the National Missing and Unidentified Persons System

A missing person presumed dead can create large financial problems for loved ones left behind

Establishing "clear and convincing evidence of death" can be difficult

Rhonda Smith lost much more than her husband, Thomas Smith, the night he mysteriously disappeared.

Without any knowledge as to his whereabouts, Rhonda spent more than a year in limbo. The complete lack of explanation for his disappearance left her searching for answers that never came.

Rhonda was also left in a difficult financial situation. During the course of their nine-year marriage, Rhonda and Thomas acquired jointly owned property. However, when she tried to list their home for sale to pay off accumulating bills, she discovered she could not sell their house without her missing husband's authorization.

The National Missing and Unidentified Persons System (NamUs) estimates there are as many as 90,000 active missing person cases at any time. Thomas Smith is one of the nearly 21,000 people who have been registered with NamUs, the national centralized registry and resource center for missing and unidentified persons.

Once a missing person has been registered with the Missing Persons Database or NamUs, families, law-enforcement agencies and investigators can access resources that enable them to search nationwide for missing persons. Each missing person's file contains information such as that individual's demographics, case reports, circumstances of the disappearance and images of the missing person.

Of its nearly 21,000 total cases, the Missing Persons Database claims to have directly aided in more than 820 cases. As of January, there are nearly 11,000 open missing persons cases. More than 1,000 cases of missing persons have been registered with the database in Arizona. A majority of those missing are males, with 74 percent of those cases remaining open today.

Registration with the Missing Persons Database is an important step for a family member of a missing person seeking closure. In Arizona, there is a process by which a missing person can be declared dead following an unexplained disappearance.

Arizona Revised Statute 14-1107 provides the rules that apply when seeking a determination of death and status. Proof of death is usually established upon presentation of a certified or authenticated copy of a death certificate.

However, in a case like Thomas Smith's, where the person who is believed to have died cannot be found, death cannot be established according to the standard rules. And therein lies the problem faced by family members like Rhonda — all signs indicate that the missing loved one is dead, but the body cannot be located to obtain that determination of death.

The statute provides two rules that may assist a family member seeking to establish the death of a missing person:

-- First, in the absence of prima facie (plain or clear) evidence of death, death can be established by clear and convincing evidence.

-- Second, a person whose death cannot be established by any other means who has been absent for a continuous period of five years and has not been heard from during that time, even after diligent search or inquiry, can be determined to have died by a presumption of death.

The problem with this rule, however, is that it does not provide guidelines as to what "clear and convincing evidence of death" is. An obvious case would be a scenario where a person was known to have taken a boat out onto open waters, but is never seen thereafter and the boat is later discovered with no one on board.

Unfortunately, most cases are not this clear. In Thomas Smith's disappearance, there were almost no clues as to his whereabouts. Thomas was last seen in his backyard around 8 p.m. on July 31, 2013. At the time of his disappearance, he was not carrying his keys, phone, wallet, eyeglasses or any of his several daily medications.

No family member, friend, or co-worker has heard from Thomas since that night, and those who knew him said it was completely out of character for him abandon his responsibilities.

In September 2014, a judge in Pinal County found the evidence, or perhaps the lack of evidence, sufficient to support a finding of death of Thomas Smith. A death certificate was issued shortly thereafter.

This determination of death allowed Rhonda to begin picking up the pieces of her life. Despite the devastation that followed her realization that her husband is not coming back and that she may never know what happened to him, Rhonda now has closure.

Further, she is no longer handcuffed by her husband's absence from taking necessary steps to take care of herself or their estate. She is now authorized to sell their home and use the proceeds of Thomas' life-insurance policy to pay their accumulating bills.

Depending on the facts and circumstances of a loved one's disappearance, family members may be able to recover accidental death insurance benefits in addition to life insurance proceeds.

For those who believe their missing loved one is still alive, there are alternatives that can assist them as they wait. A conservator can take action to manage the property or financial affairs of the incapacitated person -- i.e., a person who has disappeared and left behind an estate.

A conservator is authorized to invest funds of the incapacitated person's estate and distribute sums reasonably necessary for the support, care or benefit of the incapacitated person.

Tom Asimou is an attorney at Asimou & Associates, PLC, in Phoenix. Kaysey Fung is a third-year law student at the University of Arizona.