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Here's the scenario, John's wife died 10 years ago. He has gotten remarried, sold the house, and makes a nice amount of cash with the bicycle business he had formally owned with his dead wife. Yesterday, Jane was brought to the hospital. Tests show that she's dead, despite being able to both able speak and ambulatory. According to her account, she had broken out of the family mausoleum.

My question is: How might Jane be able to prove her identity, is she able to receive her share of the sale of the house and business earnings, and is she still a married woman?

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closed as off-topic by sphennings, Ash, L.Dutch, Frostfyre, Andon May 29 '18 at 19:29

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  • $\begingroup$ Interesting reading: Judge Orders Man To Stay Dead Despite His Insistence He's Alive $\endgroup$ – Alexander May 29 '18 at 18:11
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    $\begingroup$ This looks like a question about how a scenario in your world will play out rather than about building your world. $\endgroup$ – sphennings May 29 '18 at 18:12
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    $\begingroup$ If you are asking law questions, you should include a country. One could answer this for say Switzerland, but the situation in Iran or the Cayman Islands might be completely different. $\endgroup$ – Raditz_35 May 29 '18 at 18:51
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    $\begingroup$ Unrelated 2nd comment: "Tests show that she's dead, despite being able to both able speak and ambulatory." What tests? Those are horrible tests then. If you test a car if it's a monkey and the answer is yes, in fact the car is a monkey, the logical assumption isn't that the car is indeed a monkey but that the test is useless in that particular situation $\endgroup$ – Raditz_35 May 29 '18 at 18:55
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    $\begingroup$ How was Jane preserved at death? After 10 years, sometimes only a skeleton is left? Does she still have her fingerprints (unlikely), retinas (unlikley), or teeth (likely)? $\endgroup$ – user535733 May 29 '18 at 19:02
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Jane's zombie-body can prove her identity through dental records. Depending upon the method of preservation (if any), a skeleton might be all that's left of Jane after 10 years. There's a possibility of DNA comparison...if she had a DNA test before death and if the zombie has any tissue with viable DNA. It may be harder to prove that the person living in that zombie body is really Jane and really sane, several kinds of family and competency exams may be necessary.

In Western tradition, both Civil law and religion, marriage ends at death, which is why widows and widowers are free to remarry (also see Matthew 22:30). Jane's marriage dissolved at death, and her surviving spouse properly inherited all her property. Zombie-Jane is not married anymore, is not entitled to restoration of her prior personal home nor possessions, and is not entitled to any of her former-husband's income after her death.

Of course, this answer isn't fair to zombie-Jane. It points out that society must change a few of it's rules and norms to account for the new zombie plague. For example, the Necromancer who raised her zombie might be responsible for her guardianship until she's ready to re-enter the world.

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I think any reasonable person would consider her to still be living, (legally, at least) and we would reassess our legal definition of "dead." As for her rights to her belongings and the status of her marriage, I would recommend that you research court cases related to missing persons in the country your story is set in. How does that country handle someone who has been missing for 10 years? Do they have a legal right to their belongings, or was that forfeited during their absence? I imagine Jane's case would be handled similarly. Another consideration is her (former?) husband's position on the matter. If he's a nice guy, he will likely voluntarily share at least some of her prior belongings with her. If he's a jerk, he may find all kinds of ways to stall and wreck her case.

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First test is whether she is a person, i.e. if she is alive. The ultimate medical rule is brainwaves. If an EKG shows human-looking brainwaves, she is alive. If not, one can make a legal case that she is not a human, but a "zombie virus" tapping into her memories for its own gains.
If EKG results are a subset of normal human brainwaves, she is a living human, but a disabled one. Lack of heartbeat or other biological reactions is not enough to declare a person dead if there are brainwaves.

If she is declared a living human being, getting her identity back is a matter of working the bureaucratic machine. False death declarations happen all the time. Here are couple reads, sorry if 2nd one is paywalled.
Having her Photo ID and birth certificate would help a lot.
Having DNA samples of her old self (hair) would be even better.
Obviously, that will require cooperation of her ex-husband.

If it works, she can have half of the business back.
Marriage will likely be annulled, so she cannot have the husband back.

In any case, government will keep her quarantined and under study for quite some time, to see if she is contagious.

If she is not declared to be alive, she is "human remains", which will probably be released to her ex-husband. There are typically laws for safe disposal of remains, and they might really depend on specific country and even state/province within it.

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    $\begingroup$ I think you are misreading about annulment. The first marriage might be considered ended or not, but annulled means it is considered never to have happened, which is not expected to be effected by Jane being alive or dead. The second marriage might be annulled if the first was still active and in that case Jane counts as still married to John, but I don't think that fits the fact of ten years. $\endgroup$ – user25818 May 29 '18 at 19:28
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Legal systems put great emphasis on precedent to interpret laws. This is important because laws cannot usually spell out each special case, but the legal system should be as predictable as possible. Laws and precedents will vary from place to place, but there are some regarding death and mistaken assumptions of death.

Consider this:

  • John Doe has an accident. Paramedics bring him to the emergency room where surgeons fight to save his life. An analysis shows that John Doe has been clinically dead for several seconds, but he makes a recovery. (Such cases happen regularly.)
  • Jenny Doe has an illness. She appears dead and the family practitioner makes a mistake. He signs the death certificate. The mistake is detected when she is in the morgue. (Such cases are rare enough to make the news.)
  • James Doe is missing. After several years, he is declared legally dead so that his will can be executed. Some time after that, he is found/reappears.

Judges and lawyers use these precedents if they appears applicable. Your character was legally considered dead, but this is obviously a mistake. Some people would argue to follow the precedent of the third bullet point, but there are high stakes in this and it is important to get a solid, well-considered precedent in place.

So the answer is: This may go all the way to the supreme court if it looks that there might be more people like Jane.

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