Newest Susan Powell legal fight: When to declare her dead

The fifth anniversary of Susan Powell's disappearance was supposed to be a milestone — the date when Utah law allows the missing wife and mother to be declared dead and add a measure of closure to the saga.

But as the anniversary arrives Saturday, when Powell died has turned into one more legal fight between her parents, Chuck and Judy Cox, and the family of her late husband, Josh Powell.

West Valley City police believe Susan Powell was kidnapped and killed by her husband, Josh Powell, on Dec. 6, 2009 — the last day the 28-year-old woman was last seen alive.

But in court papers, the Coxes and the Powells are arguing over whether a judge should find Susan died sometime prior to May 10, 2013, a legally significant juncture that could mean millions of dollars for one side of the family or the other.

• Estate fight

Utah law says that someone "who is absent for a continuous period of five years" is presumed to be dead. The date of death is considered to be the end of the time period "unless there is sufficient evidence for determining that death occurred earlier," the statute says.

Chuck and Judy Cox, have no plans to ask a judge for such a declaration.

"They have hope that maybe she'll be found or she's alive somewhere," said Evan Bariault, a Seattle attorney for the Coxes. "I just don't think they're ready for a court to make that determination."

Even though Susan Powell remains only missing, a federal judge in Tacoma, Wash., and a state court judge in Utah, have already issued rulings determining how proceeds from life insurance policies and assets belonging to Susan Powell should be distributed. The rulings largely benefited Susan Powell's parents, who took control of her estate in her absence.

The federal judge awarded Josh Powell's siblings, Alina, Michael and John Powell, a total of $793,397 in life insurance proceeds. When Michael Powell committed suicide in 2013, his money was left to his estate.

The federal judge awarded $2.3 million in life insurance proceeds to Josh and Susan Powell's trust and a related conservatorship controlled by the Coxes.

So declaring Susan Powell to be dead "doesn't affect our legal position," Anne Bremner, another Seattle attorney representing the Coxes said Tuesday.

• Changes to trust

But when Susan Powell died could matter to Terrica and Alina Powell, the mother and sister, respectively, of Susan Powell's late husband Josh Powell. Terrica and Alina Powell have asked a Utah judge to find that the missing woman died prior to May 10, 2013.

That's the date when Chuck Cox made changes to the legal trust belonging to Susan and Josh. Cox was acting under a provision to the trust that allowed a trustee to be appointed if Josh and Susan were dead or incapacitated.

The changes made by Cox eliminated Josh Powell's family as beneficiaries.

In September of this year, Utah 3rd District Judge L.A. Dever ruled Chuck Cox's amendments to the trust did not comply with procedures outlined by the trust, including a requirement that he obtain opinions from two doctors saying Susan was incapacitated. However, Dever upheld the changes because the Powells did not object in time.

The Powells have appealed Dever's ruling. Among their arguments is that the amendments are void because the Coxes didn't give the Powells notice of the changes.

Meanwhile, the Powells filed a separate case in 3rd District Court asking for a judge to find Susan died prior to the changes to the trust and that those changes are invalid.

• Does it matter who did it?

Alina Powell has long maintained in public statements her brother did not kill his wife. Terrica Powell has been silent on that point.

In an interview Wednesday, attorney Joshua Lee, who represents Terrica and Alina Powell, said the family was not taking a position on how Susan Powell died, just that she is dead. He said that just because the Powells assume Susan is dead does not mean they intend to prove Josh was the perpetrator.

"The Powells aren't really seeking to figure that out one way or the other," Lee said. "It's not legally relevant."

Lee says there is more than money at stake in the dispute over the estate. Lee has said the Coxes stripped his clients of what was guaranteed to them under the trust and they are "vindicating their legal rights."

"It's not as if they're going after something that they wouldn't be entitled to," Lee said. "The insurance companies put this money out there and Cox divested the Powells."

The Coxes file a motion on Nov. 25 that opposed the early date of death and asked the Powell petition be dismissed. The Cox attorneys raised multiple arguments, but they particularly seized on Terrica and Alina Powell's defense of Josh Powell.

"After arguing for years that Joshua had nothing to do with Susan's disappearance," the Cox motion to dismiss says, "they are now trying to prove he killed her in hopes that they might obtain a piece of her estate."

The motion goes on to say in one heading: "THE POWELLS' COMPLAINT SERVES NO PURPOSE BUT TO HARASS AND INCREASE THE COSTS OF LITIGATION."

Attorney Bremner has previously said that leaving the Powells as heirs to the trust would be rewarding them for Josh Powell's bad behavior. Josh Powell was the only person of interest after his wife disappeared from their West Valley City home.

On Feb. 5, 2012, Josh Powell, 36, killed himself and his and Susan's two sons, 7-year-old Charlie and 5-year-old Braden, inside a rented home in Graham, Wash. The boys were there for what was supposed to be a supervised visit. But Josh Powell locked a social services worker out of the house, hit both boys in the head with a hatchet and then set fire to the residence, which he had doused with gasoline.

A hearing has not yet been scheduled in the case over Susan Powell's date of death. The Utah Court of Appeals is not expected to rule for months on the Powells' appeal in the earlier estate case.

ncarlisle@sltrib.com

Twitter: @natecarlisle