TN 10 (06-09)

PR 02905.014 Hawaii

A. PR 09-095 Presumption of Death in Hawaii after 5 years

DATE: October 3, 2008

1. SYLLABUS

In Hawaii, an individual who has been absent for a continuous period of 5 years, during which time the individual is not heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. Under Social Security law, however, the court's declaration of death based on a presumption may be given great weight depending on the supporting evidence, but is not controlling. The number holder may not be presumed dead for purposes of Social Security until he/she has been missing for seven years and the presumption of death is not rebutted.

2. OPINION

Question Presented

I. Whether the State of Hawaii properly designated the date of death in the Certificate of Death for the number holder as 5 years from the day he went missing.

II. Whether the date of death identified on the Certificate of Death must be used by the Agency as the presumed date of death for the number holder.

SHORT ANSWER

I. Yes, in accordance with state law and pursuant to court order, the State of Hawaii properly designated the presumed date of death as 5 years after the number holder went missing.

II. No, the Agency does not have to give controlling weight to the presumed date of death listed on the Certificate of Death.

SUMMARY OF EVIDENCE

According to W, her husband, H, went missing from his boat on August 24. W reported that H's boat was found approximately 1 mile off shore, but his body was never recovered.

On March 13, the State of Hawaii, Circuit Court of the First Circuit, determined that H died on August 24, in Hawaii. On April 4, the court ordered the State of Hawaii Department of Health to issue a Certificate of Death for H, reflecting his death on August 24, in Hawaii.

ANALYSIS

I. The State of Hawaii Department of Health Properly Recorded the Presumed Date of H's Death.

In Hawaii, an individual who has been absent for a continuous period of 5 years, during which time the individual is not heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. Haw. Rev. Stat. § 560:1-107(5); Haw. R. of Evid. 304(c)(7). This presumption modified the traditional common law presumption of death after a 7-year period of absence. Haw. R. Evid. 304 Commentary. Unless there is sufficient evidence for determining that death occurred earlier, an individual who has been absent for a period of 5 years is presumed to have died at the end of the 5-year period. Haw. Rev. Stat. § 560:1-107(5). H was last seen on August 24. He was not heard from after this date. Under Hawaii law, H was properly presumed to have died August 24, 5 years after he went missing.

II. Because H Was a Missing Person and There is No Evidence of Actual Death, the Agency Does Not Have to Give Controlling Weight to the Date of Death Listed on the Certificate of Death.

When evidence of death is required to determine eligibility for Social Security benefits, the regulations describe preferred, secondary, and circumstantial evidence of death. C.F.R. § 404. 720; Program Operations Manual System (POMS) GN 00304.005, GN 00304.015, GN 00304.025. Typically, a death certificate is the preferred evidence of actual death. Id.

However, when the available evidence does not establish the fact of death as an inevitable conclusion, as in the case of a missing person, it will be presumed. 20 C.F.R. § 404.721; POMS GN 00304.050. A missing person is not presumed dead by the Social Security Administration until it has a certified copy of, or extract from an official report, that the person is presumed dead pursuant to the Missing Persons Act, 37 U.S.C. §§ 555-556, or when it has received signed statements and other records that show the person has been absent from his or her residence and not heard from for at least 7 years. 20 C.F.R. § 404.721.

If the fact of death has not been rebutted, the Agency will presume the person's date of death as either:

1. The date he/she left home;

2. The date ending the 7-year period during which he/she was absent from his/her residence and had not been heard from; or

3. Some other date shown by the evidence to be the most likely date of death.

20 C.F.R. § 404.721(b); see also 20 C.F.R. § 404.722 (explaining how a presumption of death made under 20 C.F.R. § 404.721 can be rebutted by evidence that establishes the number holder is still alive or explains the number holder's absence in a manner consistent with continued life rather than death). If only the fact of the number holder's death is material, the presumed date of death should be the last day of the 7-year period. POMS GN 00304.050(B)(7)(b).

In some circumstances, the date of presumed death may be established on or near the date of disappearance instead of the last day of the 7-year period. Those circumstances are:

1. The missing person encountered some specific peril at or about the time of the disappearance.

2. The missing person was s