PR 02905.015 Idaho

A. PR 04-032 Rebuttal of the Presumption of Death Number Holder - Vernon R. H~

DATE: November 24, 2003

1. SYLLABUS

Adjudicators should consider a presumption of death by an Idaho State court when determining whether or not the presumption of death is rebutted under SSA's rules. However, such a state order is not binding. Adjudicators can only rebut the presumption of death after the seven-year period (the minimum period an individual must have been missing and not heard from in order to presume the person's death), when evidence exists that establishes that the person is still alive or explains the individual's absence in a manner consistent with continued life rather than death. Circumstantial evidence indicating that an individual may have fled in order to avoid prosecution for a crime is insufficient to rebut the presumption of death.

2. OPINION

QUESTION PRESENTED

You have asked whether the presumption of death of a number holder can be rebutted when he fled to Canada following the murder of his wife and child, is the lead suspect in the murders, has been missing for seven years, and an Order of Presumed Death was entered in an Idaho state court.

SHORT ANSWER

After consideration of the relevant facts and law, we conclude that, although the evidence suggests number holder Vernon H~ fled to Canada to avoid prosecution for the murders of his wife and child, there is no evidence of his continuing life and the presumption of death cannot be rebutted.

FACTUAL BACKGROUND

Mr. H~ is the lead suspect in the murder of his wife and daughter. He disappeared from Coeur d'Alene, Idaho, on the day of the murder, August 12, 1996. Law enforcement believes that He fled across the U.S.-Canada border to escape prosecution for the murders. Murder charges are currently pending in Idaho. The police purportedly have an eye witness and DNA to support the charges.

Mr. H~ has not been seen or heard from since August 12, 1996. His earnings records show no activity since 1995. Three of his relatives have submitted statements to SSA that they have not heard from him and his whereabouts are unknown. His picture has been shown on the TV show, "America's Most Wanted", but no information was received. His mother died, leaving him an inheritance, which he has not claimed. On May 20, 2002, the District Court of the First Judicial District of the State of Idaho, County of Kootenai, issued an Order of Presumed Death stating that "VERNON R. H~ is presume dead and that his four (4) children, Juston, C~, Brittany, and Desiree are declared his natural surviving heirs." The court established the date of presumed death as August 12, 2001. Three of Mr. H~'s surviving children have applied for child survivor's benefits.

DISCUSSION

A. Statutory and Regulatory Background

The Social Security Act provides that child's insurance benefits will be paid to children when, among other factors, the children were dependent on the number holder at the time of his/her death. See 42 U.S.C. § 402(d)(1)(C)(ii). The "best" evidence of death is:

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

(2) A statement of the funeral director, attending physician, intern of the institution where death occurred;

(3) A certified copy of, or extract from an official report or finding of death made by an agency or department of the United States; or

(4) If death occurred outside the United States, an official report of death by an United States Consul or other employee of the State Department; or a copy of the public record of death in the foreign country.

20 C.F.R. § 404.720(b). If the preferred evidence is not available, then death may be proven by other convincing evidence. 20 C.F.R. § 404.720(c). If death of the person is unable to be proven, death will be presumed upon presentation of signed statements by those in a position to know and other records showing that the person has been absent from his or her residence and has not been heard from for at least seven years. 20 C.F.R. § 404.721(b); Program Operations Manual System (POMS) GN 00304.050.

In support of their claim, Mr. H~'s children submitted the Idaho state court Order of Presumed Death. The presumption of death under Idaho law occurs "after a continuous period of five years, during which he has not been heard from, and whose absence is not satisfactorily explained after a diligent search or inquiry". IDAHO CODE § 15-1-107(c); Cole v. John Hancock Mutual Life Ins. Co., 741 P.2d 734, 737 (Idaho Ct. App. 1987).

In the present case, the Idaho Order of Presumed Death is not sufficient "preferred" evidence under 20 C.F.R. § 404.720(b), because it is not an actual finding of death based on the presence or identification of a body, but merely the application of the state law presumption. See Daubert v. Sullivan, 905 F.2d 266, 270 (9th Cir. 1990). However, it is evidence to be considered by SSA. While the state court's finding of presumptive death is not binding on SSA, it "operates as a profound and comprehensive declaration of rights . . . under state law", and may be highly relevant to the determination to be made. Green v. Shalala, 51 F.3d 96, 102 (7th Cir. 1995), quoting Aubrey v. Richardson, 462 F.2d 782, 784 (3rd Cir. 1972). In further support of their claim, Mr. H~'s children also submitted statements from three of Mr. H~'s relatives who stated they had not heard from him and his whereabouts were unknown.

The presumption of death can be rebutted by "evidence that establishes that the person is still alive or explains the individual's absence in a manner consistent with continued life rather than death." 20 C.F.R. § 404.722; see also POMS GN 00304.050. The presumption arises without regard for the reason for the disappearance. POMS GN 00304.050; see also Singer v. Schweiker, 694 F.2d 616, 618 (9th Cir. 1982) (unexplained disappearance and possible motive to avoid paying child support was insufficient to rebut presumption); Christen v. Secretary of HEW, 439 F.2d 715 (9th Cir. 1971) (immortality not achieved by known flight); Secretary of HEW v. Meza, 368 F.2d 389, 391-93 (9th Cir. 1966) (disappearance was unexplained was insufficient to rebut presumption). The fact that there was financial or marital difficulty or mental instability prior to the disappearance is not sufficient by itself to rebut the presumption. See Meza, supra. Here, there is no evidence to indicate that Mr. H~ is still alive. The information currently provided merely indicates that Mr. H~ was last seen on the day he allegedly murdered his wife and daughter, and that he may have fled to Canada to avoid prosecution for the murders.

CONCLUSION

At this point, there is insufficient evidence to rebut the presumption of death following Mr. H~'s absence for over seven years. SSA would not be justified in disallowing the claims for survivor's benefits.

Lucille G. M~
Regional Chief Counsel

By:_______________________
Joanne E. D~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1502905015
PR 02905.015 - Idaho - 04/01/2008
Batch run: 01/27/2009
Rev:04/01/2008