Declaring a missing serviceman dead: lawyers explained the Supreme Court’s position on determining the time frame

The disappearance of a serviceman during hostilities is not only a personal tragedy for the family, but also a complex legal issue, the resolution of which determines property, social, hereditary and other legal consequences. In such cases, the court must act especially carefully: on the one hand, to prevent premature recognition of a person as deceased, and on the other hand, to ensure legal certainty for his relatives, who may remain in a state of uncertainty for years.

Lawyers of the Repeshko and Partners Law Firm explained how the deadline for declaring a serviceman who disappeared during hostilities dead is determined, and why not only the date of disappearance, but also the status of the territory where it occurred, is important for the court.

The issue of declaring servicemen who disappeared during hostilities dead is now faced by many families. Behind each such case is not only the expectation of news, but also the need to determine the legal status of the missing person. Despite the hope of relatives for capture, error or new information, legal issues remain that need to be resolved.

The procedure for declaring a person dead under current legislation was formed for peacetime and ordinary life circumstances. It was not designed for such a number of cases when a person actually faces a question of life and death after disappearing in a combat zone. That is why the question of deadlines has acquired special importance in judicial practice: two years or six months? What exactly is the deadline for a serviceman who disappeared during combat operations to be declared dead? The family’s further legal actions depend on this, including the execution of documents, social guarantees, inheritance and other legal issues. That is why it is important to understand what deadline must pass for applying to court: two years or six months.

By its resolution of May 20, 2026 in case No. 405/6164/24, the Supreme Court of Ukraine ruled on when exactly a serviceman who disappeared during hostilities can be declared dead. The case materials show that the mother of the serviceman applied to the court with a statement to declare her son dead. She noted that her son was serving in the military as a gunner in a mechanized detachment. According to the family’s notification of January 25, 2024, he went missing under special circumstances near the city of Bakhmut, Donetsk region.

The court of first instance granted the statement and declared the serviceman dead. The court also established the date of death, determined the place of death to be the settlement of Bakhmut, Donetsk region, Ukraine, and noted that the death of the serviceman was related to the defense of the Motherland, participation in ensuring the implementation of national security and defense measures, repelling and deterring armed aggression of the Russian Federation against Ukraine. The decision of the appellate court left the decision of the district court unchanged.

In granting the mother’s application to declare her son dead, the court of first instance, with whose conclusion the appellate court agreed, proceeded from the provisions of part two of Article 46 of the Civil Code of Ukraine. According to this norm, the court may apply a six-month period if there are substantial grounds to believe that an individual died as a result of hostilities or an armed conflict, if there are no reasonable grounds to expect that the circumstances will change over time or new data will appear regarding the whereabouts of this person. That is, the court may apply a shortened six-month period instead of a two-year period.

The case materials duly confirmed that during the evacuation of the wounded, as a result of mortar shelling, near the HOVERLA military unit, near the settlement of Bakhmut, Donetsk region, the applicant’s son stopped communicating and disappeared under circumstances that directly threatened his life.

However, the Ministry of Defense of Ukraine did not agree with the decisions of the courts of first and appellate instances and filed a cassation appeal with the Supreme Court. Substantiating its cassation appeal, the Ministry of Defense of Ukraine noted that since December 13, 2023, the city of Bakhmut, Donetsk region has the status of a temporarily occupied territory. In the opinion of the Ministry, the courts of first and appellate instances did not take into account the legal conclusion of the Grand Chamber of the Supreme Court, set out in the resolution of December 11, 2024 in case No. 755/11021/22.

In this resolution, the Grand Chamber of the Supreme Court drew attention to the fact that the two-year and six-month time limits established by law are intended to ensure the possibility of searching for a person and clarifying his fate. During hostilities or armed conflicts, people often disappear in circumstances where it is impossible to reliably establish the fact of death. This is due to both active hostilities and the occupation of the relevant territories. Therefore, even after the expiration of the time limits established by law, final information about the fate of a person may remain absent.

The Ministry of Defense of Ukraine also emphasized that the six-month period provided for in Part Two of Article 46 of the Civil Code of Ukraine cannot be automatically calculated from the date of the alleged death of a person in the territory of active hostilities. In such conditions, contact with a person may be lost for various reasons, he may change his place of residence or be captured, which complicates the establishment of the circumstances of his disappearance. In addition, due to the lack of reliable information, it is often impossible to even approximately determine the date of possible death, and therefore to correctly calculate the period for declaring a person dead.

When considering the case, the Supreme Court proceeded from the provisions of parts two and three of Article 46 of the Civil Code of Ukraine. According to these norms, an individual who went missing in connection with hostilities or an armed conflict may be declared dead by a court after the expiration of two years from the date of the end of hostilities. At the same time, taking into account the specific circumstances of the case, the court has the right to declare a person dead earlier, but not before the expiration of six months. The law also provides for the possibility of declaring a person dead from the date of his probable death, if he disappeared under circumstances that threatened his life or gave reason to assume death.

The case under consideration concerned a serviceman, a citizen of Ukraine, who, while performing a combat mission, according to available data, could have died as a result of mortar shelling during the evacuation of the wounded near the settlement of Bakhmut, Donetsk region.

In this case, the key issue for the Supreme Court was determining the moment from which it is necessary to calculate the special period established by Part Two of Article 46 of the Civil Code of Ukraine. The court noted that the law provides for two special periods for cases of declaring a person deceased. The six-month period applies in cases where a person disappeared under circumstances that directly threatened his life or give reason to assume death from a certain accident. The two-year period is established for persons who went missing in connection with military operations. One of the signs of such circumstances is the introduction of martial law on the territory of Ukraine.

In substantiating its position, the Supreme Court referred to the provisions of the Law of Ukraine “On the Defense of Ukraine”, which defines the concepts of martial law, military and combat operations, as well as areas where such operations are or may be conducted. These concepts are relevant to the case, since it is with them that the law associates the possibility of applying special terms for declaring a person deceased:

– martial law is a special legal regime introduced in Ukraine or in certain localities in the event of armed aggression or a threat of attack, a danger to the state independence of Ukraine, its territorial integrity and provides for the granting of the relevant state authorities, military command and local self-government bodies with the powers necessary to avert the threat and ensure national security, as well as temporary, due to the threat, restrictions on the constitutional rights and freedoms of man and citizen and the rights and legitimate interests of legal entities, with an indication of the term of validity of these restrictions;

– combat operations – a form of using formations, military units, subdivisions (other forces and means) of the Armed Forces of Ukraine, other components of the defense forces to solve combat (special) tasks in operations or independently during the repulsion of armed aggression against Ukraine or the elimination (neutralization) of an armed conflict, the performance of other tasks with the use of any types of weapons (weapons);

– military operations – organized use of defense forces and security forces to perform tasks for the defense of Ukraine;

– area of ​​military (combat) operations – a part of the land territory of Ukraine, air and/or water space, determined by the decision of the Commander-in-Chief of the Armed Forces of Ukraine, in which military (combat) operations are being conducted or/and may be conducted for a certain period of time.

The court noted that the legal purpose of establishing such special terms is not only to create a procedure. Two years from the end of hostilities or six months in exceptional cases are necessary primarily to enable the search for a person and to take measures to return him or her from the zone of hostilities, armed conflict or from other states and territories.

The need for such periods is explained by the fact that during war the circumstances of a person’s disappearance often remain unknown for a long time. Death or disappearance can occur in areas of active hostilities or in temporarily occupied territories, where it is extremely difficult to obtain reliable information. Even after the expiration of the periods established by law, final information about the fate of a person may be absent. It is in order to overcome such legal uncertainty that the law provides for the possibility of declaring a person deceased as a legal fiction.

The Supreme Court also drew attention to the fact that part two of Article 46 of the Civil Code of Ukraine does not specify in which cases a shortened six-month period may be applied instead of the general two-year period. At the same time, the Grand Chamber of the Supreme Court previously clarified that such a period may be applied if there are good grounds to believe that a person died as a result of hostilities or an armed conflict, as well as in the absence of reasonable grounds to expect the appearance of new information about his whereabouts or a change in the circumstances of the case (paragraph 61 of the resolution of the Grand Chamber of the Supreme Court of December 11, 2024 in case No. 755/11021/22).

Separately, the court recalled the provisions of Article 253 of the Civil Code of Ukraine, according to which the running of any period begins not on the day of the occurrence of the relevant event, but on the day following it. That is why, in order to correctly resolve the dispute, it was necessary to determine from which event in this case the six-month period provided for by law should be calculated.

Formulating a legal conclusion regarding the beginning of the six-month period stipulated in the second sentence of part two of Article 46 of the Civil Code of Ukraine, the Supreme Court explained that the phrase “from the date of the end of hostilities” in such cases should be understood not in the abstract, but with reference to a specific territory. That is, the six-month period should be calculated primarily from the date of the end of active hostilities in the territory where the individual probably died.

This approach, according to the court, is necessary in order to reduce the risk of prematurely declaring a person who may be alive dead. These are situations when contact with a person is lost in the conditions of hostilities, but it is impossible to definitively establish his fate immediately. That is why the six-month period should be counted not simply from the date of the probable death, but from the date of the end of active hostilities in the place or territory of the probable death.

At the same time, the Supreme Court noted that it is this approach that allows for a more reasonable determination of the moment when the disappearance of a person with an extremely high degree of probability can be considered final and irreversible. This meets the purpose of legislative regulation, as it ensures fairness and legal certainty for all interested parties. At the same time, the court separately drew attention to the fact that specific military actions have not only temporal, but also territorial characteristics. The official source of information about such characteristics is the List of territories in which hostilities are or were conducted or which are temporarily occupied by the Russian Federation.

Initially, such a List was approved by the order of the Ministry for the Reintegration of Temporarily Occupied Territories of Ukraine dated December 22, 2022 No. 309, as amended. Subsequently, the relevant regulation was enshrined in the Order of the Ministry of Development of Communities and Territories of Ukraine dated February 28, 2025 No. 376.

Order No. 376 defines the territories in which hostilities are or were conducted, in particular, territories of possible hostilities, territories of active hostilities, territories of active hostilities in which state electronic information resources operate, as well as territories of Ukraine temporarily occupied by the Russian Federation. It is important that this order contains not only a list of such territories, but also the dates of the beginning and end of hostilities in the relevant territory.

Thus, courts can use data from Order No. 376 to establish the time limits for conducting hostilities in a specific territory of Ukraine. It is these data that are important for determining the moment from which the six-month period for declaring a person deceased may begin.

In the case reviewed by the Supreme Court, it was established that a serviceman went missing near the settlement of Bakhmut in the Donetsk region. According to Order No. 376, from February 24, 2022 to December 12, 2023, the city of Bakhmut in Donetsk region was a territory of active hostilities, and from December 13, 2023 it is a temporarily occupied territory.

The Supreme Court confirmed the consistency of the approach according to which the six-month period provided for in Part Two of Article 46 of the Civil Code of Ukraine should be counted from the date of the end of active hostilities at the place of the probable death of a person. This approach is also applied when the status of the territory changes from a territory of active hostilities to a territory of possible hostilities or to the territory of Ukraine temporarily occupied by the Russian Federation.

In view of this, the Supreme Court concluded that the courts of first and appellate instances made the correct decisions. As a result, the cassation appeal of the Ministry of Defense of Ukraine was dismissed, and the decisions of the courts of previous instances were left unchanged.

Therefore, we advise families of missing servicemen to carefully collect all documents confirming the circumstances of the disappearance, the place of the combat mission, the report from the military unit, and data on the status of the relevant territory before going to court. This evidence can be crucial for the correct determination of the deadlines and the court’s adoption of a legal decision.