A death certificate issued in the State of Georgia that establishes an individual's death and indicates the date the individual died is preferred evidence of death for Social Security purposes. Because the individual's death is established based on preferred evidence of death, Social Security's rules for presumption of death have no relevance in this matter.

Question Presented

In this case, involving a request by a Georgia resident for benefits on the record of her spouse, an insured individual who disappeared while visiting California in August 2000, you asked the following questions:

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  What date of death will the Social Security Administration (SSA or Agency) recognize where the State of Georgia issued a death certificate based on the individual being missing for four years and presumed dead?

• •

  Is the individual's spouse entitled to a lump sum death benefit where the individual was in another state when he went missing?

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  Who is entitled to any underpayment due the individual?

Short Answers

Because the death certificate satisfies the evidentiary requirements for proof of death, it would also establish the date of death as August 21, 2004. Although the evidence suggests that the insured individual and his spouse were not living in the same household at the time of his death, his spouse may still be entitled to a lump sum death benefit under section 202(i)(1) or (2) of the Social Security Act (Act), 42 U.S.C. § 402(i)(1), (2). The deceased individual's spouse may also be due any underpayment pursuant to section 204(d) of the Act, 42 U.S.C. § 404(d).

BACKGROUND

The facts as presented are that Randall M~, the number holder (NH), has been missing since August 21, 2000. Jean M~ (Claimant), NH's wife, and Susan M. M~, his daughter, filed a Petition for Presumption of Death of Missing Individual Believed to Be Dead on January 5, 2005, alleging that NH had been missing from his last known place of domicile for a continuous period of four years. On May 9, 2005, the Probate Court of Bibb County issued an Order granting Claimant's Petition. In this Order, the court found that "the missing individual is dead and that the date of death is hereby established as August 21, 2004." The State of Georgia issued a death certificate listing the date of NH's death as August 21, 2004 and the immediate cause as the probate court's order.

In the Petition for Presumption of Death, Claimant alleged that NH was domiciled in Macon, Georgia, and had left on a vacation to California on or about August 6, 2000. Prior to leaving for California, NH had been staying in a tent on his daughter's property since May or June 2000. NH was last seen in Los Angeles, California on August 21, 2000, by a deputy that had taken him to a shelter. The California highway patrol later found a videotaped suicide note in NH's car. Claimant and NH's daughter traveled to California and filed a missing person's report but received no additional information concerning his whereabouts. NH's brothers and sisters provided statements indicating that they had not seen or heard from NH since his disappearance.

On March 1, 2006, Claimant filed an application for a lump sum death payment (LSDP), alleged that she and NH were living together at the same address at the time of his death. Claimant also filed a claim for any Social Security Payments due NH.

Authority

Upon the death of a fully or currently insured individual, an amount equal to three times his primary insurance amount or $255.00, whichever is smaller, shall be paid in a lump sum to the person, if any, the Commissioner determines to be the widow of the deceased and to have been living in the same household with the deceased at the time of death. See section 202(i) of the Act; 20 C.F.R. §§ 404.390, 404.391 (2006). If there is no such person, then such amount shall be paid to other survivors designated in order of preference at section 202(i) of the Act, as detailed at 20 C.F.R. §§ 404.391, 404.392 (2006).

An individual applying for benefits on the record of a deceased person must produce evidence of the date and place of death under 20 C.F.R. § 404.720 (2006). This regulation provides, in pertinent part:

(a) When evidence of death is required. If you apply for benefits on the record of a deceased person, we will ask for evidence of the date and place of his or her death. We may also ask for evidence of another person's death if this is needed to prove you are eligible for benefits.

(b) Preferred evidence of death. The best evidence of a person's death is-

(1) A certified copy or extract from the public record of death, coroner's report of death, or verdict of a coroner's jury; or a certificate by the custodian of the public record of death . . . .

20 C.F.R. § 404.720 (2006); see also Program Operations Manual System (POMS) GN 00304.005.

If there is no "preferred evidence" of death, the claimant may provide "secondary evidence" which may include signed statements from two or more people with knowledge of the fact of death. See 20 C.F.R. § 404.720(c) (2006); POMS GN 00304.15. When there is no preferred or secondary evidence of the fact of death, POMS GN 00304.25 directs the field office to "establish the death based on the circumstantial evidence." When circumstantial evidence does not establish the fact of death as an inevitable conclusion, the death may be presumed after seven years have elapsed since the disappearance. See 20 C.F.R. § 404.721(b); POMS GN 00304.050.

DISCUSSION

In support of her application for a lump sum death payment and any benefits owed NH, Claimant presented an official Georgia death certificate. This death certificate was issued after a probate court issued an Order Establishing Presumption of Death and Date Thereof pursuant to the following provision of the Georgia Code:

(a) A domiciliary of this state who has been missing from the last known place of domicile for a continuous period of four years shall be presumed to have died; provided, however, that such presumption of death may be rebutted by proof. The date of death is presumed to be the end of the four-year period unless it is proved by a preponderance of the evidence that death occurred earlier.

Ga. Code Ann. § 53-9-1 (2006). The presentation of an official Georgia death certificate satisfies the evidentiary requirements for preferred evidence of death pursuant to the provisions of 20 C.F.R. § 404.720(b). Moreover, the death certificate establishes the date of NH's death as August 21, 2004.

Although Social Security regulations regarding the presumption of death require that the individual be missing for at least seven years, these previsions are only applicable when there is no preferred or adequate secondary evidence of death, as outlined at 404.720(b) or (c), and no official report of death by a Federal agency. See 20 C.F.R. § 404.721 (2006). Thus, the time limit for a presumption of death determination for Social Security purposes under section 404.721(b) has no relevance in this matter.

You have also asked whether Claimant is entitled to a lump sum death benefit. Claimant contends that she and NH were living together in the same household at the time of his death. For purposes of determining whether an individual claimant and deceased wage earner were "living in the same household," the regulations provide:

Living in the same household means that you and the insured customarily lived together as husband and wife in the same residence. You may be considered to be living in the same household although one of you is temporarily absent from the residence. An absence will be considered temporary if:

a. It was due to service in the U.S. Armed Forces;

(b) It was 6 months or less and neither you nor the insured were outside of the United States during this time and the absence was due to business or employment, or to confinement in a hospital, nursing home, other medical institution, or a penal institution;

(c) It was for an extended separation, regardless of the duration, due to the confinement of either you or the insured in a hospital, nursing home, or other medical institution, if the evidence indicates that you were separated solely for medical reasons and you otherwise would have resided together;

(d) It was based on other circumstances, and it is shown that you and the insured reasonably could have expected to live together in the near future.

20 C.F.R. § 404.347 (2006); see also POMS RS 00210.035.

In asserting that she and NH were living in the same household at the time of his death, Claimant states in her application: "I believe that that Randall and I were living together until his death. He could have returned home at anytime." There is evidence in the record, however, that suggests that Claimant has not met the requirements of section 404.347. Claimant acknowledged that NH had been living in a tent on his daughter's property for at least two to three months prior to the time he left for California in August 2000. The Missing Person Report that was filed in October 2000 in connection with NH's disappearance lists his daughter's address as his place of residence. Additionally, NH's brother acted as his representative payee; and NH stayed with his brother for long periods of time. It may also be advisable to contact NH's brother to determine the reason that he served as NH's representative payee. Should the Agency determine that Claimant and NH were not living in the same household at the time of his death, it would be necessary to determine whether the lump sum death benefit may be paid to any other individual designated in order of preference at section 202(i) of the Act and 20 C.F.R. §§ 404.391, 404.392.

NH's death certificate lists his date of death as August 21, 2004; and this date is consistent with the requirements of Ga. Code Ann. § 53-9-1 (2006). Because the Agency suspended NH's benefits in October 2000, he may be due an underpayment. If an individual dies before any payment due him is completed, section 204(d) of the Act provides that the payment shall be made, in order of preference, to:

1. The surviving spouse who either was living in the same household with the deceased at the time of his death or was, for the month in which the deceased individual died, entitled to a monthly benefit on the basis of the same wages and self-employment income;

2. The child or children, of the deceased individual who were, for the month in which the deceased individual died, entitled to monthly benefits on the basis of the same wages and self-employment income;

1. The parent or parents, if any, of the deceased individual who were, for the month in which the individual died, entitled to monthly benefits on the basis of the same wages and self-employment income;

2. The person, if any, to be the surviving spouse of the deceased individual;

3. The child or children of the deceased individual;

4. The parent or parents of the deceased individual;

5. The legal representative of the estate of the deceased individual.

Section 204(d) of the Act; 20 C.F.R. § 404.503 (2006).

Although the evidence suggests that Claimant was not living in the same household as NH on the date of his death, it is necessary for the Agency to determine whether she was entitled to a monthly benefit based on NH's wages and income for the month that he died under section 204(d)(1) of the Act. Assuming that Claimant did not have a child or parents that satisfied the requirements of sections 204(d)(3) and (4) of the Act, Claimant would appear to meet the requirements of a surviving spouse under section 204(d)(5) of the Act and would be entitled to any underpayment due NH.

Mary A. S~

Regional Chief Counsel, Atlanta

By: ________________________

Joseph P. P~, III

Assistant Regional Counsel

Georgia law does not specify whether a conviction for voluntary manslaughter presupposes intent. However, under Georgia law, an essential element of the offense of voluntary manslaughter is the intention to take human life. Because the claimant was convicted of voluntary manslaughter, and because an essential element of that offense is the intent to kill, she is ineligible for benefits pursuant to 20 C.F.R. § 404.105(b).

Question Presented

Is the claimant, who was found guilty of voluntary manslaughter in the death of the deceased numberholder (DNH), precluded from entitlement to benefits on the DNH's earnings record under GN 00304.060?

Answer

Yes. Under Georgia law, an essential element of the offense of voluntary manslaughter is the intention to take human life.

Background

Based on the information provided by the Milledgeville Field Office (FO), we understand the factual background as follows:

On March 3, 1968, the DNH died while domiciled in Georgia. The death certificate listed the cause of death as a stab wound to the chest, and also stated that the stab wound was caused by the DNH's wife. The Putnam County Sheriff's Office provided additional documentation, including the indictment of Claimant for the murder of the DNH, and the verdict finding her guilty of voluntary manslaughter and sentencing her to twenty years imprisonment. Also provided was a printout from the Georgia Dept. of Corrections, showing that Claimant was incarcerated at the Women's Correctional Institute from October 11, 1968 through December 24, 1974.

On January 31, 2006, Claimant filed an application for widow's benefits under the Social Security Act. Because Georgia law does not specify whether a conviction for voluntary manslaughter presupposes intent, the FO sought a legal opinion.

Discussion

The regulations at 20 C.F.R. § 404.305(b) provide that an individual is not entitled to benefits on the earnings record of a numberholder if he or she was convicted of a felony or an act in the nature of a felony of intentionally causing that person's death. The Agency's policy is set forth at POMS GN 00304.060 and GN 00304.075. A further statement of policy is contained in Social Security Ruling 89-6c: Section 205(A) Of The Social Security Act (42 U.S.C. 405(A)) Conviction Of Second-Degree Manslaughter -- Kentucky -- Effect On Entitlement To Survivor's Insurance Benefits (1989).

SSA's policy regarding the definition of "intent" is not limited to engaging in conduct with the purpose of causing the death of another but also encompasses

a. A wish or an expectancy that an act will have a certain result (regardless of the actual likelihood of such a result); or

b. The presence of will in the commission of a criminal act where the individual is fully aware of the nature and probable consequences of the act which is to be done. This applies whether the individual desires that such consequences occur or is indifferent as to their occurrence.

POMS GN 00304.060(B)(1).

Under Georgia law, a person commits the offense of voluntary manslaughter when he "causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder." O.C.G.A. § 16-5-2(a) (2005). Georgia law provides that an individual commits the offense of murder when he "unlawfully and with malice aforethought, either express or implied, causes the death of another human being." O.C.G.A. § 16-5-1(a) (2005). The statute further states that express malice is "that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart." O.C.G.A § 16-5-1(b) (2005). Therefore, the distinguishing feature between murder and voluntary manslaughter is the presence of malice. Intent is an essential element of both offenses.

In distinguishing manslaughter from murder, Georgia courts have consistently held that when a homicide is neither justifiable nor malicious, it is manslaughter, and where it is intentional, it is voluntary manslaughter. See Dubose v. State, 369 S.E.2d 924 (Ga. Ct. App. 1988); Conley v. State, 247 S.E.2d 562 (Ga. Ct. App. 1978); Spradlin v. State, 82 S.E.2d 238 (Ga. Ct. App. 1954). Moreover, in Parks v. State, 330 S.E.2d 686 (Ga. 1985), the court held that "intent to kill is an essential element of both murder and voluntary manslaughter." Id. at 696.

Conclusion

Because the claimant was convicted of voluntary manslaughter, and because an essential element of that offense is the intent to kill, she is ineligible for benefits pursuant to 20 C.F.R. § 404.105(b).

Mary A. S~

Regional Chief Counsel, Atlanta

By: ________________________

Michael S. F~

Assistant Regional Counsel