You requested a legal opinion regarding the presumed date of death of Jeri M. S~ for
entitlement to survivor's benefits for her two minor children. Using the date of death
listed on the death certificate, Ms. S~ would not be insured under the Social Security
Act (the Act) at the time of her death. Based on the facts presented, we believe it
is reasonable to conclude that Ms. S~'s date of death was October 12, 1999, the date
You stated that Jeri M. S~, the number holder, disappeared on October 12, 1999, and
was not heard from thereafter. On January 17, 2002, skeletal remains were identified
as Ms. S~. On March 14, 2002, the medical examiner of Jefferson County, Missouri,
Mary C~, M.D., certified that Ms. S~'s cause of death was “homicidal violence,” and that her date of death was January 17, 2002.
Pursuant to your request, Dr. C~ wrote a letter to SSA in which she stated that January
17, 2002, was listed as the date of death because when bodies or remains are found,
pronouncement of death is on the date and time found. Dr. C~ further stated that “[b]ased on the skeletonized nature of the remains it is, however, evident that this
person has been dead for some length of time, certainly longer than 1 month.”
In April 2002, survivor and lump sum death claims were filed on the record of Ms.
S~ for her two surviving children. However, Ms. S~'s insured status under the Act
expired on December 31, 2001. Based on the date listed on the death certificate, Ms.
S~ did not meet the insured status requirements of the Act for any possible survivor
benefits on her record.
You inquired as to whether Ms. S~'s date of death, for SSA purposes, could be established
prior to the date listed on the death certificate.
On May 20, 2002, we requested additional information concerning whether there were
statements on file attesting to the time of Ms. S~'s disappearance. The materials
you provided indicated that Ms. S~ disappeared on October 12, 1999, and was not seen
again. Her mother, Ms. V~, signed a statement in which she said that she spoke to
Ms. S~ that evening, but that Ms. S~ then left home and did not return. She called
the police, and was advised to file a missing persons report with the police on October
14, 1999. You also forwarded to us a missing persons poster produced by Nation's Missing
Children Organization, which identifies Ms. S~ as missing as of October 12, 1999,
and states that she was last seen when she went to drop off a video tape. You also
included various newspaper clippings which further document Ms. S~'s disappearance,
the search, and the subsequent recovery of her remains. A report of contact with a
police detective verified that according to the detective, a missing persons report
had been made and the report number was identified. Dwana J. P~, a friend of the family,
stated that Ms. S~ would never have left home without telling someone where she was
going or making arrangements for her children. Ms. P~ also noted that she had last
spoken to Ms. S~ on October 12, 1999.
The Social Security Act provides that child's insurance benefits will be paid to children
when, among other factors, the child was dependent on the individual “if such individual has died, at the time of such death . . .” 42 U.S.C. §402(d)(1)(C)(ii). The Act does not contain criteria for determining the
date of death. Social Security regulations state that evidence of an individual's
death is required if there is an application for benefits filed on the record of the
deceased person. See 20 C.F.R. § 404.720 (2001). The Regulation states that the “preferred” evidence of death is a certified copy of the public record of death. See id. Other “preferred” evidence is a statement from a funeral director, an extract from an official report
made by a federal agency, or a report from the State Department for foreign deaths.
See id. If the “preferred”"evidence of death cannot be obtained, the individual will be asked to provide “other convincing evidence,” such as signed statements from two or more people with personal knowledge of the
death, giving the place, date, and cause of death. See id.
Under the regulations, if the claimant cannot prove that an individual is dead, evidence
can be provided which would allow SSA to presume an individual died at a certain time.
See 20 C.F.R. § 404.721 (2001). A claimant may present signed statements by “those in a position to know” and other records which show that an individual has been absent from his or her residence
for at least seven years. Id. In that event, SSA may use as the person's date of death either: 1) the date the
individual left home; 2) the date ending the seven-year period; or, 3) some “other date depending upon what the evidence shows is the most likely date of death.” Id. Here, a unique situation presents itself in which the individual is without question
deceased, but was at one time missing, and her body was found prior to the end of
the seven-year period described in the regulation. See id.
The normal “best evidence” of death would be the death certificate, however, the death certificate date does
not purport to be the actual date of death in this case. As the medical examiner stated,
under Missouri law a medical examiner or coroner is obligated to list the date that
the remains are found, not the date that death actually occurred or may have occurred,
as the “date of death” on a death certificate. See Mo. Ann. Stat. § 193.145 (West 2002). The death certificate should not then be considered
“preferred” evidence of the date of death in this case, but is “preferred” evidence only to the fact that death occurred.
Courts have interpreted the SSA regulations in this area in accordance with the common
law presumption of continued life. The United States District Court for the Eastern
District of Missouri has recently stated that SSA's interpretation of 20 C.F.R. §
404.721 would be evaluated under the “common law principles” of presumed date of death. See Duncan v. Massanari, No. 4:00CV1175DDN, 2001 WL 1862824 (E.D. Mo. Sept. 20, 2001). The common law presumption
is that, [w]hile death may be presumed from the absence, for seven years, of one not
heard from, where news from him, if living, would probably have been had, yet this
period of seven years during which the presumption of continued life runs, and at
the end of which it is presumed that life ceases, may be shortened by proof of such
facts and circumstances connected with his habits and customs of life, as submitted
to the test of reason and experience, would show to your satisfaction by a preponderance
of the evidence that the person was dead.
Id. at *5 (quoting Fidelity Mut. Life Ass'n of Phil. v. Mettler, 185 U.S. 308, 316 (1902) (emphasis added in D~). The D~ court went on to note that either party is free to prove an earlier time of death,
but that in the absence or insufficiency of such proof, the fact-finding tribunal
should determine that the individual died at the close of the period. See id. at *5 (internal citations omitted).
In Meriwether v. Apfel, No. CIV. A. 98-2172-KHV, 1999 WL 450899 (D. Kan. May 11, 1999) aff'd 242 F.3d 389
(10th Cir. 2000) (table, text in Westlaw), the United States District Court determined
that the presumption of continued life could be rebutted by the facts of that case.
These included the individual's depression and likely suicide, the closeness and frequency
of contact prior to the disappearance, and the lack of unexplained activity in credit
or bank accounts. See id. at *4. The court found that the Commissioner could use the date of an individual's
disappearance as the date of his presumed death. See id. at *6. In D~, the court also noted that evidence that the wage earner had no reason to leave home
and every reason to remain might be substantial evidence of death at the time of disappearance
which would be sufficient to rebut the presumption of continued life. See D~, 2001 WL 1862824 at *6. This interpretation is consistent with long-standing Eighth
Circuit case law.
See Claywell v. Inter-Southern Life Ins. Co. of Louisville, 70 F.2d 569 (8th Cir. 1934) (death of absentee might be proven by circumstantial
evidence, but party alleging death must prove facts and circumstances connected with
the absence of the person warranted reasonable conclusion of death); Browne v. New York Life Ins. Co., 57 F.2d 62 (8th Cir. 1932) (death may be proven by circumstantial evidence). This
principal has been codified in Missouri statutes. See Mo. Ann. Stat. § 456.620 (West 2002) (death presumed to have occurred at the end
of the specified period unless there is sufficient evidence for determining that death
Social Security policy states that the agency will use the common law presumption
of death analysis, which is the same analysis followed in the cases cited above. Social
Security Ruling (SSR) 99-1p states that [t]he presumption of death, founded on common
law, is widely accepted in State and Federal courts to determine entitlement to property
and is codified in our regulations. We use this regulatory presumption to establish
the fact of death for entitlement purposes, and will also use it to determined that
SSR 99-1p. Although this Ruling explains how SSA will terminate entitlement upon death,
we believe that the same principles apply to establish initial entitlement to survivor
benefits. The Ruling restates the section of 20 C.F.R. § 404.721, which states that
death will be presumed to have occurred on the date of disappearance, the date ending
the seven-year waiting period, or some other date depending upon what the evidence
shows is the most likely date of death. See SSR 99-1p.
Additionally, according to the Programs Operations Manual System (POMS), a date of
death at or near the date of disappearance may be found if the facts of the case fit
into any of the following four situations: 1) the missing person encountered some
specific peril at or about the time of disappearance; 2) the missing person was suicidal;
3) the missing person was in such a poor state of health and was so destitute that
survival was improbable for any length of time after the disappearance; or, 4) the
missing person was attentive to domestic duties, had a home to which he/she was attached
and suddenly, finally, and without explanation disappeared. See POMS GN
00304.050.6 (Presumption of Death). Here, the missing individual was subsequently determined
to have died as a result of homicide, and the missing person was normally attentive
to domestic duties, was attached to the home, and disappeared suddenly without explanation.
On the facts here, we believe that it is reasonable to conclude that Ms S~'s date
of death is not the date listed on the death certificate. Therefore, another date
that represents the “most likely” date of death must be used. We believe that under 20 C.F.R. § 404.721 and the common
law, it is reasonable to conclude that Ms. S~'s “most likely date of death” was October 12, 1999. Courts, particularly the United States District Court for the
Eastern District of Missouri (wherein the claimant resides), would in all likelihood
find that the common law presumption of continued life was shortened based upon the
statements from Ms. V~ and Dr. C~, the police report, the documentation from the newspapers
relating to the disappearance, and the fact that there is no evidence that Ms. S~
was alive after October 12, 1999.
Please note that this opinion should not be considered precedential for all situations
in which an individual is missing and then found prior to the time their death can
be presumed under the regulations. Each claim should be considered on a case-by-case
Frank V. S~ III
Bert W. C~
Assistant Regional Counsel