Today we have a guest post from Mike Lee, who wrote an analysis of an issue from the end of The Dark Knight Rises. Just describing the issue is a pretty big spoiler, so I’ll save the description for after the jump.

The Dark Knight Rises and the “Death” of Bruce Wayne

—by Mike Lee

My friend Dan and I are big fans of the site, so when he had a question about The Dark Knight Rises, we researched and discussed it a bit, and thought other readers might be interested too! Thanks for giving us a fun way to study some of the finer points of law.

Dan emailed me the following question:

Batman is presumed dead after all of Gotham witnesses his death. Sure. But why is Bruce Wayne legally declared dead as well? Only four people (who aren’t talking) know his identity, and this is a man who has a habit of disappearing for nearly decades at a time. Wouldn’t you expect the courts to be a little more reticent than that, especially given that they screwed up the “declared dead” bit in the first film?

My response:

Ordinarily, a person can be declared dead either (1) by presenting remains such as a corpse or skeleton, (2) being continuously absent and out of communication for a set period of time (seven years at common law), or (3) showing that the person was in imminent peril of death and has not returned.

In Bruce Wayne’s case, we know there’s no body because his butler, Alfred, thinks Bruce died in a nuclear explosion. If there were some other body that turned up, Alfred’s suspicions would be greatly raised. (I suppose it’s possible that despite Alfred’s really thinking Bruce is dead, he faked a body to expedite the declaration process. But there’s nothing to suggest any motive for that.)

So can the Wayne Estate have Bruce declared dead without a body? As is Law and the Multiverse’s convention for Gotham, let’s look at New York law.

By statute, New York has reduced the common law’s seven-year period of required continuous absence to three years. N.Y. Est. Powers & Trusts Law § 2-1.7, available at http://codes.lp.findlaw.com/nycode/EPT/2/1/2-1.7. Alternatively, the statute establishes that exposure “to a specific peril of death” might suffice to establish death in absentia, even if the three-year statutory period has not yet run. Id. at § 2-1.7(b).

New York’s three-year timetable doesn’t help the Wayne estate much. So the question is whether Bruce has been “exposed to a specific peril of death” so as to meet the requirements of § 2-1.7(b).

Now, Batman clearly meets the requirements—a plane exploded with him apparently in it, so he could easily be declared dead without a body. This is the classic scenario for “specific peril”: missing planes, wreckage of boats found, houses burned to the ground, that sort of thing.

But this doesn’t help us much with Bruce Wayne, because the courts don’t know he was in the nuclear explosion that consumed the not-a-Batwing-Bat-plane. So what might count as “specific peril of death”?

The wholesale sacking of Gotham might. In fact, under New York precedent it probably does. A 1952 New York Surrogate Court case permitted a finding of presumptive death under the common law standard because the people in question “disappeared under circumstances of fatal danger.” In re Podkowik’s Estate, 114 N.Y.S.2d 710, 712 (Sur. Ct. 1952). They were of Jewish descent, were in Lithuania starting in 1939, and had not been heard from since the Nazi occupation of that country. Id. at 711. The court mandated a continued search, but held that “no fixed period of time is necessary where the facts demonstrate that death occurred in some clearly identified disaster.” Id. at 712 (internal citations omitted).

While no systematic genocide occurred in Gotham, we know that the city was overrun for several months with widespread executions, lootings, murders, and violence. We also know that these incidents were focused on the wealthy such as Mr. Wayne due to Bane’s class-warfare approach. In the wake of tens of thousands of deaths, with intentional executions disproportionately focused on wealthy scions such as Bruce Wayne, I think it’s reasonable to consider Wayne to have been in “specific peril of death,” especially in light of the way In re Podkowik’s Estate treats its common law case.

The precedent’s not perfectly on point; note that the persons in question in In re Podkowik’s Estate were in a foreign country, and that they had been absent for thirteen years. (The case was not about their estates, but about their eligibility to inherit Mr. Podkowik’s.) And of course the Holocaust was a uniquely devastating event in world history. But the reasoning seems to apply here: widespread violence and membership in a targeted class during a “clearly identified disaster” permitted a finding of presumptive death.

So while there’s no body, and while the three-year statutory period hasn’t run, I think New York courts would likely declare that Bruce had faced such “specific peril of death” in Bane’s No Man’s Land that this forms a sufficient basis to declare him dead in absentia, and to begin the disposition of his estate.

My thanks to the helpful post by Irwin Scherago, Declaration of Death of a Missing Person: Obtaining Preliminary Letters Testamentary While Waiting for Declaration, available at http://www.mlg.com/news_events/attorney_articles/missing_person.html (last visited May 26, 2013).