This memorandum is in response to the Kansas City Regional Commissioner's request
the Office of the General Counsel's legal opinion regarding whether SSA may establish
date of a New Mexico number holder's death as the date the number holder was reported
missing, rather than the subsequent date the body was found. For the reasons stated
below, it is our opinion that the date of death for the number holder may be established
as the date that he was reported missing.
The facts of this case establish that Adrian J. Q~ was last seen on August 18, 1989
at a creek in the Briars Peak area. He was distraught because of a separation from
his wife and was a known alcoholic. He was reported as missing on October 12, I989.
Social Security benefits which the number holder had been receiving since January
1978 were suspended, but life benefits continued to be paid to his wife and children.
A report from the Office of the Medical Investigator for the State of New Mexico reveals
that a skeleton and complete set of dentures were found scattered around a small stream
west of San Geranimo, west of Las Vegas. Anthropology and postmortem examination reports
presumptively identified the, so remains as those of Adrian Q~. It was estimated that
death had occurred two to six years prior to discovery of the remains. The New Mexico
Certificate of Death states that Mr. Q~ was "pronounced" dead on July 21, 1994.
We believe the unique circumstances of this case require application of two sections
of applicable New Mexico statutory law dealing with actual evidence of death where
there are remains of the decedent,
45-1-107. Evidence of death or status. In addition to the rules of evidence in courts
of general jurisdiction, the following rules relating to a determination of death
and status apply:
(A) ... (B) a certified or authenticated copy of a death certificate purporting to
be issued by an official or agency of the place where the death purportedly occurred
is prima facie evidence of the fact, place, date and time of death and the identity
of the decedent; (C) a certified or authenticated copy of any record or report of
a governmental agency, domestic or foreign, that an individual is missing, detained,
dead or alive is prima facie evidence of the status and of the dates, circumstances
and place disclosed by the record or report; (D) in the absence of prima facie evidence
of death pursuant to Subsections (B) or (C) of this section, the fact of death may
be established by clear and convincing evidence, including circumstantial evidence[.]
N.M. STAT. ANN. §45-1-107 (Michie 1993).
Because the evidence from the Office of the Medical Investigator for the State of
New Mexico includes skeletal remains and an official death certificate providing prima
facie evidence of the fact and date of death. subsection (B) of the statute is applicable.
The death certificate, apparently, requires a pronouncement or declaration of date
of death. However, because State evidence also contains anthropology and postmortem
examination reports presumptively identifying the remains as those of Mr. Q~ and providing
prima facie evidence of dates and circumstances of death disclosed by the report,
subsection (C) of the statute is als0 applicable.
Thus, although Mr. Q~ was not pronounced dead for purposes of subsection (B) until
July 21, 1994, it would be permissible to establish an earlier date of death under
subsection (C). This would be based upon the discussion in the anthropology examination
of the two to six year period (1988 to 1992) during which death could have occurred.
The number holder was reported missing on October 12, 1989, which falls within this
time period. Accordingly, because there is evidence which may be considered under
both subsections (B) and (C), subsection (C) may be given preference to allow more
flexibility in establishing the date reported missing as the date of death.
Because the remains of the number holder have been "presumptively' identified, an
alternative approach to allow establishing the date that Mr. Q~ was reported missing
as the date of death would be to consider this case under the applicable presumption
of death statutes and regulations. First, New Mexico statutory law provides the following:
(E) an individual whose death is not established pursuant to Subsection (A), (B),
(C), or (D) of this section, who is absent for a continuous period of five years,
during which he has not been heard from and whose absence is not satisfactorily explained
after diligent search or inquiry [,] is presumed to be dead. His death is presumed
to have occurred at the end of the period unless there is sufficient evidence for
determining.. that death occurred earlier;...
N.M. STAT. ANN. §45-1-107 (Michie 1993). Thus, the presumption of death at the end
of five years is rebuttable by sufficient evidence that the death occurred earlier.
Here, the anthropology and postmortem examinations of the remains of Q~ show that
when found on July 21, 1994, he had been dead at for least two, but no more than six
years. We believe this report is sufficient evidence under New Mexico statutory law
to rebut the presumption Set out in subsection (E) and allow SSA to determine that
the death occurred in August 1989, when Mr. Q~ was last seen, or October 12, 1989,
when he was reported missing.
Second, although at common law, a prescribed period of unexplained absence raises
the presumption of death, it appears to be the general rule in the Tenth Federal Judicial
Circuit that this unexplained absence raises no presumption as to the precise date
or death. See Kansas
City Life Ins. Co. v. Marshall, 84 Colo. 71,268 P. 529 (1928); The Praetorians v. Phillips, 184 Okla. 521, 88 P.2d 647(1939). Rather, the determination of date of death is
a clearly separate issue from the presumption of death and is to be judged as a matter
of fact according to the circumstances. See Modern Woodmen of America v. Gerdom, 72 Ken. 391. 82 P. 1100, later app., 77 Ken 401, 94 P. 788 (1908). See also Roth
v. Carlson, 138 F.2d 753 (7th Cir. 1943), cert. denied, 321 U.S. 789 (1944); Fidelily Mutual Life Assurance v. Mettler, 185 U.S. 308 (1902); Davie v. Briggs, 97 U.S. 628 (1878).
The facts and circumstances of this case, particularly the medical investigators'
report establishing a period of time within which death reasonably could have occurred,
supports a conclusion that Q~ died up to six years prior to the discovery of the remains.
Because Q~ was reported missing five years prior to the discovery of the remains,
under common law, the date of death may be adjudged as the date reported missing.
Third, it is widely agreed that the Commissioner's regulation should be interpreted
consistent with the common law origin of the presumption of death. Brewster on Behalf
of Keller v, Sullivan, 972 F.2d 898, 902 (8th Cir. 1992); Edwards v. Califano, 619 F.2d 865,869 (10th Cir. 1980). Examination of the Social Security regulation
discussing evidence to presume a person is dead reveals the following:
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 death (emphasis
added). (b) Signed statements by those in a position to know and other records to
show that the person has been absent from Iris or her residence for no apparent reason,
and has not been heard from, for at least 7 years. if there is no evidence available
that he or she is still alive, we will use as the person's date of death, either the
date he or she left home, the date ending the 7 year period, or some other date depending
upon what the evidence shows is the most likely date of death.
20 C.F.R. §404.721. Although subsection (a) of this regulation does not directly apply
to the facts of this claim because there is not a report from a United State government
agency or department. it may be inferred from the language of this subsection that
establishing the date of death as the date of disappearance is appropriate because
there is no other evidence showing an actual date of death. 120 C.F.R. §404.721(a).
Moreover, although subsection (b) does not directly apply because there are identified
remains and a death certificate, it does permit establishing the date of death as
the date the person left home or based upon evidence showing the most likely date
of death. Therefore, the Social Security regulation on presumption of death may be
interpreted as permitting SSA to establish the date of death as the date Mr. Q~ was
reported missing.
Therefore, in our opinion, SSA may establish the date of death as the date the number
holder was reported missing, August 18, 1989, given the report of the medical investigators
and in light of the statutory and common law.