You asked whether survivor benefits can be paid to the survivors of Mark xxxxx, who
has been missing at sea since July 29, 2005. Subsequently, you asked whether survivor
benefits can be paid to the survivors of Mark's wife, Laura xxxxx, who was with Mark
and disappeared at the same time.
We believe circumstantial evidence provides a strong basis for concluding that Mark
and Laura died on July 30, 2005, and therefore, an SSA adjudicator could determine
to pay survivor benefits to their survivors prior to the passage of seven years.
Mark and Laura were married approximately one year before they went on vacation in
Costa Rica in July 2005. On July 29, 2005, Mark and Laura chartered a sail boat with
a crew of three Costa Ricans for a half-day fishing trip. The boat never returned,
and Mark, Laura, and the three crew members went missing.
A massive search was launched by the U.S. Coast Guard, Costa Rican Coast Guard, and
the Nicaraguan Navy. The Costa Rican Coast Guard initiated a search on July 30 and
was aided by boats and a plane from private sources.
The Nicaraguan Navy was alerted on July 31 and committed boats to the search. The
U.S. Coast Guard conducted an extensive search by aircraft and watercraft beginning
on August 1, and covered over 250,000 square miles.
The searchers did not find Mark and his wife, the three crew members, or the boat.
The U.S. Coast Guard aerial and sea search continued until the morning of August 6.
The Costa Rican Coast Guard and Nicaraguan Navy subsequently terminated their formal
Mark and Laura's disappearance made local and national news, and several stories were
published in newspapers and internet sites, including MSNBC.com.
Congressmen Ben C~'s office has been highly involved with obtaining information from
the U.S. Embassy in Costa Rica and assisting the families of Mark and Laura. On September
2, 2005, an internet report indicated that Congressman C~ office has overseen the
U.S. efforts to locate Mark and Laura. In an unsigned statement taken on September
21, 2005, Loren C~, field supervisor to Congressman Ben C~, indicated "all evidence
gathered by federal agencies indicates that they are deceased," and that he was "not
at liberty to discuss any specific details of active law enforcement investigations."
The record is also replete with statements from Mark's ex-wife, Laura's ex-husband,
Mark and Laura's minister, and Mark's business partner. All of them stated that Mark
and Laura had intended to return from their trip.
On September 26, 2005, the U.S. Consul's Office in San Jose, Costa Rica issued a Report
of Presumptive Death of an American Citizen for both Mark and Laura. Both reports
state that the date of death was July 30, 2005, and the cause of death was "Reported
Missing at Sea" with no remains found.
Both NH and Laura were previously married. NH had three children from his prior marriage,
and paid $600/month in child support. Laura has one child from her previous marriage.
The regulations and the Program Operations Manual System (POMS) provide that a claimant
must produce either "preferred evidence" of the fact of death under 20 C.F.R. § 404.720(b)
and POMS GN 00304.005, or "secondary evidence" of the fact of death under 20 C.F.R. § 404.720(c) and POMS
Where there is no preferred or secondary evidence of the fact of death and the body
has not been recovered, POMS GN 00304.025 directs the field office to "establish the death based on circumstantial evidence."
This POMS provision further states:
The amount of evidence needed to establish death as the inevitable conclusion from
all of the circumstances of the disappearance will depend on the facts developed.
There is no prescribed amount of time which must pass before a death can be established
based on circumstantial evidence.
POMS GN 00304.025A. If the disappearance was due to a drowning, POMS 00304.025(B)(3)(a) directs the field
office to develop the evidence under POMS 00304.025(B)(2) and to "[g]et statements
from at least three eyewitnesses." If there were no eyewitnesses, the field office
is directed to "get statements from other people familiar with the disappearance."
POMS 00304.025(B)(2) is captioned "Evidence-Body Not Recovered" and provides that
the amount and type of evidence in any case "will depend on judgment."
This POMS provision also provides a list of evidence to obtain including, but not
* Statements from the claimant and persons with knowledge about the missing person
* Letters or notes left or sent by the missing person that may have a bearing on the
* Insurance investigations (e.g., the facts and date of death established by the insurance
company's investigation or any life insurance policies carried on the missing person
which were paid)
* Investigations conducted by Federal, State, or local agencies (e.g., reports by
the FBI, coast guard, or police)
* Newspaper reports
* Information about others who disappeared at the same time
* Reports of casualty from the military
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.
Here, the evidence gathered by the Agency provides a strong case to establish Mark
and Laura's death by circumstantial evidence. Significant weight should be given to
the Reports of Presumptive Death of an American Citizen issued by the U.S. Consul's
Office in San Jose, Costa Rica on September 26, 2005, nearly two months after Mark
and Laura were last seen.
The reports identify that Mark and Laura were presumed dead as of July 30, 2005, and
the cause of death was "Reported Missing at Sea" with no remains found.
In addition, the record is replete with evidence of a massive search by the U.S. Coast
Guard, Costa Rican Coast Guard, and Nicaraguan Navy. The Costa Rican Coast Guard initiated
a search on July 30 and was aided by boats and a plane from private sources. The Nicaraguan
Navy was alerted on July 31 and committed boats to the search. The U.S. Coast Guard
conducted an extensive search by aircraft and watercraft beginning on August 1, and
covered over 250,000 square miles. The search resulted in no findings of Mark, Laura,
the crew members, or the boat. The U.S. Coast Guard's aerial and sea search continued
until the morning of August 6, and the Costa Rican Coast Guard and Nicaraguan Navy
subsequently terminated their formal searches.
The record is also replete with over a dozen local and national newspaper and internet
newspaper reports, documenting the search for the couple as well as the Coast Guard's
termination of the search. One internet report, posted September 2, 2005, indicated
that the FBI continued to conduct an investigation after the Coast Guard searches
were terminated.* There is no basis to question any of the reporters' credibility.
While the record does not include any reports of investigation from the FBI or other
federal agencies, the record includes an unsigned statement from Loren C~, field supervisor
to Congressman Ben C~, who stated that "all evidence gathered by federal agencies
indicates that they are deceased," and that he was "not at liberty to discuss any
specific details of active law enforcement investigations."
While there are no signed statements from eyewitnesses, there is an unverified report
from Mark's brother, who indicated that he went down to Costa Rica, and spoke with
witnesses that saw the couple get on the boat.
No further information was reported.
Furthermore, the record includes statements from sources familiar with Mark and Laura's
disappearance, including statements from the ex-spouses of Mark and Laura. The statement
from Mark's ex-wife indicates that when he left, he told his children that he would
see them in a few days, and that "it was obvious that he planned to return." Likewise,
the statement from Laura's ex-husband indicates that his last contact with Laura was
on July 22 before he took a trip to Alaska with their son. On that date, Laura said
goodbye to her son and ex-spouse, and her goodbyes were described as "normal" and
that "there was no doubt that Laura intended to return and see our son on her return."
Mark and Laura's minister also provided a statement indicating that they were happy
in their new marriage, and when they left for vacation, there was no doubt that they
planned to return.
Mark's business partner, Todd E~, was asked to provide a statement regarding whether
there was a problem with the business such that NH would falsify his death. In his
statement, Mr. E~ assured SSA that the business was doing well, and that Mark had
intended to return to work after his vacation.
There is no information in the record concerning any life insurance policies carried
on Mark or Laura, any investigations conducted by an insurance company, and whether
any insurance claims were filed.
In sum, there appears to be strong circumstantial evidence establishing that Mark
and his wife drowned on or around July 30, 2005, the date used in the U.S. Consul's
Report of Presumptive Death of an American Citizen. However, if you determine that
further development of the record is needed, you could explore whether there were
any insurance investigations subsequent to Mark and Laura's disappearance, and whether
any insurance claims were filed and, if so, whether they were paid.
Furthermore, we believe that a Report of Presumptive Death of an American Citizen
issued by a U.S. Consul's Office is strong evidence to establish "circumstantial evidence
of death," and POMS GN
00304.025(B)(2) should be amended to include such a report as one of the pieces of evidence
to be considered and/or gathered by the Agency when death occurs outside of the United
States. Such an amendment would be consistent with 20 C.F.R. § 404.720(b)(4) and POMS
GN 00304.005, both of which recognize that an official report of death from a U.S. Consul's office
is listed as an example "preferred evidence" of death which SSA should obtain. Moreover,
the POMS already recognizes that official reports of presumptive death for individuals
in the armed forces are used as evidence to establish the fact of death, and such
evidence if available should be gathered. See, e.g., POMS 00304.025(B)(2), POMS 00304.207. Thus, we believe that reports on presumptive
death issued by a U.S. Consul's Office should also be obtained by the Agency when
a civilian dies outside the United States, and by copy of this opinion, we refer this
matter to the Office of Income Security Programs.
Based on the evidence provided by the Agency, we believe that there is circumstantial
evidence of Mark and his wife's death, and an SSA adjudicator could determine to pay
survivor benefits to the survivors of Mark and Laura prior to the passage of seven
Mary A. S~,
Regional Chief Counsel
Assistant Regional Counsel