This memorandum is in response to your request for our opinion on whether the Social
Security Administration (SSA) may establish a date of Brenda K. T~'s death that is
different from the date "found" shown on her death certificate. It is our opinion
that SSA may establish a date of death that is different from the date shown on her
death certificate based upon evidence indicating that, although missing approximately
seven years, she was murdered soon after her disappearance.
The evidence shows that Ms. T~, SSN ~, was reported missing on October 10, 1991. She
was last seen with Kenneth A. M~, a convicted serial killer. Her body was discovered
on October 3, 1998, near Waco, Texas. A certificate of death from McLennan County,
Texas, dated January 20, 1999, shows "found October 3, 1998" in the date of death
block. The certificate lists "homicidal violence" as the injury that caused her death.
The exact time and place of the injury were recorded as unknown, but the date of her
injury was recorded as October 10, 1991. The approximate interval between the onset
of her injury and death is recorded as unknown.
On March 7, 2000, the deceased's three children filed an application for surviving
child's insurance benefits. As you know, under POMS GN 00204.008, a misinformation determination can be used to establish a deemed filing date on
behalf of a deceased number holder. You indicated that a deemed filing date of April
1997 may be used because the file shows that the deceased's mother-in-law first inquired
about benefits for the three children at that time. Under Section 202 of the Social
Security Act, 42 U.S.C. §402(d), every child of an individual who dies as a fully
or currently insured individual shall be entitled to child's insurance benefits for
each month beginning with the first month in which the child files an application
for benefits. Under Section 202, these benefits may be payable retroactively to six
months prior to application. 42 U.S.C. §402(j). If a deemed filing date of April 1997
is used and if a date of death before October 1996 can be established, then survivor's
benefits would be payable beginning October 1996 (6 months prior to April 1997). 42
U.S.C. §§ 402(j), 1382j(e). You have asked for guidance as to whether Texas state
law would allow SSA to establish October 10, 1991, the date Ms. T~ was reported missing,
as the date of death.
Under Texas law "Any person absenting himself for seven successive years shall be
presumed dead unless it is proved that the person was alive within the seven-year
period." Tex. Civ. Prac. & Rem. Code § 133.001 (Vernon 2000). However, this statute
does not apply in this instance, because the evidence clearly shows that Ms. T~ is
dead, and that her body was found within seven years from the date she was first reported
missing. Although a presumption of death may exist, there is no presumption relating
to the exact time or date of death. Texas courts have found that the time of death
must be determined by considering "any fact or circumstance from which a reasonable
inference may be drawn as to time of death." See American Nat. Ins. Co. v. Dailey et al., 187 S.W. 2d 716, 717 (Tex. Civ. App. 1945).
In another case, a Texas court found sufficient evidence for establishing a date of
death soon after disappearance when the deceased was 38 years old, had been happily
married for 9 years, left his home one evening to visit other friends, and was never
heard from again. See American Nat. Ins. Co. v. Hicks, 35 S.W. 2d 128, 130-132 (Tex. Com. App. 1931). Another Texas court considered the
effect of the Federal Missing Persons Act and the Texas Presumption of Death Act,
both of which would have established the date on which a death certificate was signed
as the date of death of a missing naval air navigator for life insurance purposes.
See Valley Forge Life Ins. Co. vs. Republic Nat. Life Ins. Co., 579 S.W. 2d 271, 276 (Tex. Civ. App. 1978); 37 U.S.C. § 555; Tex. Rev. Civ. Stat.
Ann. art. 5541 (Vernon Supp. 1978). A presumption of death in the year shown on the
death certificate was overcome, the court concluded, by a narrative statement by the
pilot that the navigator had ejected from an exploded aircraft, but his parachute
had failed to open and he was never heard from again. Once the statutory presumption
was rebutted, the death certificate provided no reasonable basis for an inference
that death occurred on the date the certificate was signed. After the presumption
disappeared, the remaining evidence brought the case within the common law rule that
"if a person is last seen under circumstances of imminent peril to his life, and is
never seen or heard of again, he is presumed to have died of that peril." See Valley Forge Life Ins. Co., 579 S.W. 2d at 276. As noted above, in the case at hand, Ms. T~ was last seen with
Kenneth A. M~, a convicted serial killer. Thus, the rationale stated in the Valley
Forge case would apply in this instance.
Although you requested a review of relevant Texas law, the Social Security regulations
offer further guidance concerning the type of evidence that is useful for determining
the circumstances of an individual's death. The regulations provide:
Evidence of a person's death.
(a) When evidence of death is required. If you apply for benefits on the record of
a deceased person, the Commissioner will ask for evidence of the date and place of
his or her death.
(b) Preferred evidence of death. The best evidence of a person's death is -
(1) A certified copy or extract from the public record of death, coroner's report
of death, or verdict of a coroner's jury; or a certificate by the custodian of the
public record of death; . . .
20 C. F. R. § 404.720 (2000).
The file contains two forms of preferred evidence, the certificate of death and an
autopsy report.1 Both documents confirm Ms. T~'s death. However, the certificate of
death and the autopsy report are unclear about the time and date of death. Both documents
indicate under "Date of Death" that Ms. T~'s body was "found" on October 3, 1998.
On the certificate of death, the exact time and place of the injury were recorded
as unknown, and the approximate interval between the onset of her injury and death
was recorded as unknown. The autopsy report indicated "a postmortem interval of several
years duration." Thus, although the preferred items of evidence establish that Ms.
T~ is dead, they do not conclusively establish her actual date of death.
However, in this instance, the information contained in the autopsy report and the
certificate of death can be used as convincing evidence that death occurred on October
10, 1991. The certificate of death indicates that Ms. T~ was injured by "homicidal
violence" on October 10, 1991.2 The forensic examiner's finding that there was "a
postmortem interval of several years duration" also supports the establishment of
an October 10, 1991, date of death.
In addition, the regulations set forth a policy of using the date a person is reported
missing as the date of death in the absence of other sufficient evidence showing an
exact date of death. The regulations state:
If you cannot prove the person is dead but evidence of death is needed, we will presume
he or she died at a certain time if you give us the following evidence:
(a) A certified copy of, or extract from, an official report or finding by an agency
or department of the United States that a missing person is presumed to be dead as
set out in Federal law (5 U.S.C. 5565). Unless we have other evidence showing an actual
date of death, we will use the date he or she was reported missing as the date of
20 C. F. R. § 404.721(a) (2000).
The rationale stated in the Valley Forge case and the policy set forth in 20 C. F. R. § 404.721(a), along with the evidence
contained in the autopsy report and the certificate of death noted above would support
the conclusion that Ms. T~ died on October 10, 1991. Therefore, in our opinion, it
would be legally supportable for SSA to establish the date of death as October 10,
1991, the date Ms. T~ was reported missing.