Legal Question in Wills and Trusts in Virginia

Re: Putting husband in your living will, a last eill and testament or a trust

You should consult with a Virginia attorney to discuss the application of the law to the facts of your particular situation. The following is general legal information on the presumption of death in Virginia. No one is obligated to put his or her spouse in his or her will or trust. Service by publication is one method of serving someone whose whereabouts is unknown.

Section 64.1-105 creates a presumption of death in certain instances, including an unexplained absence:

A. 1. Any person who has resided in this Commonwealth who (i) leaves, does not return to the Commonwealth for seven years successively and is not heard from; (ii) disappears for seven years successively and is not heard from; or (iii) disappears in a foreign country, whose body has not been found and who is not known to be alive, upon issuance of a report of presumptive death by the Department of State of the United States, shall be presumed to be dead. Any person not residing in this Commonwealth, but owning real or personal property herein, who disappears for seven years successively from the place of his residence outside of this Commonwealth and is not heard from, shall be presumed to be dead.

2. The presumption created by this subsection shall arise in any cause wherein the person's death is in question, unless proof is offered that he was alive within the time specified or, in the case of a presumed death in a foreign country, at any time following his disappearance, whether before or after the report of presumptive death was issued.

B. The fact that any person was exposed to a specific peril of death may be a sufficient basis for determining at any time after the exposure that the person is presumed to have died less than seven years after the person was last heard from.

C. Any person on board any ship or vessel underway on the high seas who disappears from such ship or vessel, or any person on board an aircraft that disappears at sea, and who is not known to be alive, whose body has not been found or identified prior to a hearing of a board of inquiry as to such disappearance shall be presumed to be dead upon the findings of a board of inquiry that the person is presumed dead, or six months after the date of such disappearance, whichever shall first occur...

Re: Putting husband in your living will, a last eill and testament or a trust

You would not have to put his name on your living will, last will and testament or trust even if you knew where he is, so you sure don't have to if you don't now where he is.

You can divorce him without knowing where he is, but it would be wise to ask an attorney to represent you in that process. It can get a bit complex.