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.
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.
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
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);
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.
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
Joanne E. D~
Assistant Regional Counsel