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:
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?
Who is entitled to any underpayment due the individual?
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).
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.
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.
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
Joseph P. P~, III
Assistant Regional Counsel