PR 021: DISABILITY - Litigation
TN 11 (02-13)
A. PR 13-022 Louisiana Law-Establishing Date of Death Different From That Shown on Death Certificate (NH Lester SSN ~)– REPLY
DATE: May 16, 2007
It is the Chief Counsel’s opinion that SSA may establish a date of death that is different from the date the Louisiana Certificate of Death showed his body was “found,” and instead rely on the Louisiana state court judgment that fixed the date of death as June XX, 2009, the date the number holder was reported as missing.
The Chief Counsel based his decision on the fact that the Louisiana state court judgment meets all four prongs of the G~ test. They are as follows:
1. The Louisiana court judgment meets the first prong of the G~ test because the Louisiana district court is a state court of competent jurisdiction, and it established Lester’s date of death.
2. The Louisiana court judgment also meets the second prong of the G~ test because the court judgment followed the trial of the Petition for Declaration of Death where an attorney represented the petitioners and an attorney represented the absentee, Number Holder (NH).
3. While a Petition for Declaration of Death may not be an issue within the core category of domestic relations cases, the judgment resulting from a Petition for a Declaration of Death could impact a division of marital property.
4. The court considered all circumstances and evidence surrounding the NH’s disappearance. Thus, the judgment complies with the fourth prong of the G~ test.
This memorandum is in response to your request for an opinion on the correct date of entitlement for widow’s benefits. Specifically, you ask whether SSA may establish a date of death different from that shown on a number holder’s death certificate. It is our opinion that SSA may establish a date of death that is different from the date the Louisiana Certificate of Death showed his body was “found,” and instead rely on the Louisiana state court judgment that fixed the date of death as June 7, 2009, the date the number holder was reported as missing.
As we understand the facts, Lester (number holder), a male of the age of 71 years, left his home and family on May 30, 2009, while domiciled in Louisiana. According to an Incident Report by the West Baton Rouge Parish Sherriff’s Office, on June 7, 2009, at 3:57 a.m., a police officer was dispatched to the Highway 190 Bridge to investigate a motor vehicle that was abandoned, but still running. The police officer checked the area but could not locate anyone. The dispatcher obtained the license plate number and contacted the residence of the registered owner of the motor vehicle, Lester’s daughter said that her father should be home, but that she could not find him. Detective Percy Simms, an investigator with the West Baton Rouge Parish Sheriff’s Office, was on call on the morning of June 7, 2009, and was dispatched to the scene at 6:30 a.m. When Detective Simms arrived, the vehicle had been towed, and he stated that no one had come forward to definitely state that Lester had jumped off the bridge. Detective Simms stated that Lester’s sons both called the West Baton Rouge 911 Center requesting information about their missing father.
On June 7, 2009, Detective Simms contacted Chris , Lester’s son, who stated that everything was in order at his parents’ home, but that his father had been upset recently because of his wife’s stroke. On June 7, 2009, Detective Simms also called Lester’s son, who told Detective Simms that his father occasionally went to the Cajun Circus Casino in the morning. Detective Simms checked with the casino and found that Lester had not gone to the casino on the morning of June 7, 2009. On June 13, 2009, Detective Simms contacted Chris to see if Lester had returned home or if anyone had spoken to him. Lester said that no one had spoken to his father, but that he had found his father’s wallet and cellphone in his father’s dirty clothes. Detective Simms advised the family to file a report that Lester was missing.
Lester’s family filed a Petition for Declaration of Death. On January 26, 2010, the Honorable Alvin, judge of the 18th Judicial District Court in Louisiana, signed a judgment stating that Lester was deceased and that his date of death was fixed as June 7, 2009. In a letter dated April 19, 2010, the State of Louisiana Department of Health and Hospitals, Bureau of Legal Services, notified the attorney for Lester’s family that despite the January 2010 presumptive death judgment, the Vital Records Registry could not issue a presumptive death certificate for Lester until five years had passed from the date of his presumptive death, that is, no death certificate to issue until June 8, 2014.
On January 25, 2012, Lester’s body was found in White Castle, Louisiana, eighteen miles from Baton Rouge. On April 24, 2012, the State of Louisiana issued a Certificate of Death stating that the date of death was January XX, 2012, when Lester’s body was found.
On October 9, 2012, the Plaquemine, Louisiana, Social Security field office contacted Lester, Jr. about developing a date of death determination for his father, Lester. On October 15 and 16, 2012, Lester and his wife, Angela each completed SSA Forms 723-F4, “Statement Regarding the Inferred Death of Individual by Reason of Continued and Unexplained Absence.” You have asked for guidance on whether SSA may establish a date of death that is different from the date the Louisiana Certificate of Death showed that his body was found and instead rely on the Louisiana state court judgment that fixed the date of death as June 7, 2009, the date the number holder was reported as missing.
At issue is the correct date of entitlement for widow’s benefits. When a claimant applies for benefits on a deceased person’s record, SSA asks for evidence of the date and place of death. See 20 C.F.R. § 404.720(a). The best evidence of a person’s death, or the preferred evidence, includes 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. See 20 C.F.R. ? 404.720(b). The information you provided includes the January 2010 judgment that establishes a presumptive date of death of June XX, 2009, the date Lester was reported missing; and the April XX, 2012 Louisiana Certificate of Death that states Lester’s body was “found” on January XX, 2012. Neither document shows Lester’s actual date of death.
When evidence of death is required to determine eligibility for Social Security benefits, the regulations describe preferred, secondary and circumstantial evidence. See 20 C.F.R. § 404.720; POMS GN 00304.005; 00304.015, and 00304.025. Typically, a death certificate is the preferred evidence of death. See 20 C.F.R. § 404.720(b)(1). Although SSA considers a death certificate to be preferred evidence, the Louisiana Certificate of Death herein is unclear about the date of Lester’s death. Therefore, SSA must determine the date of Lester’s death.
The regulations provide that in the absence of other evidence showing an actual date of death, SSA will presume a date of death and discuss the evidence necessary for the agency to presume a person is dead. Section 20 C.F.R. § 404.721 provides in pertinent part:
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 his 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 is still alive, we will use as the person’s date of death, either the date he left home, the date ending the 7 year period, or some other date depending upon the what the evidence shows is the most likely date of death.
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 States 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. See 20 C.F.R 404.721(a). The Certificate of Death states only that Lester’s body was “found” on January 25, 2012; it does not include an actual date of death.
Moreover, although subsection (b) does not directly apply because there is a death certificate, it does permit establishing the date of death as the date the person left home based upon evidence showing it the most likely date of death. Here, the evidence shows that on June XX, 2009, Lester’s motor vehicle was found abandoned but still running on a bridge, and Lester’s family never saw or heard from him again. Thus, the evidence suggests that it is more likely than not that Lester died on the date he went missing, June XX, 2009, rather than on January XX, 2012, the date his body was found. Therefore, we may interpret the regulations on presumption of death as permitting SSA to establish the date of death as June 7, 2009, the date . Lester was reported missing. We have addressed the issue of establishing a date of death that is different than that shown on the death certificate and reached similar conclusions. Click for PR 02905.048 Texas A. PR 01-143 Reply- Determination of Date of Death, Brenda at 3 (April 5, 2001). Click for PR 02905.034 New Mexico A. PR 95-506 Legality of Establishment of Date of Death Different From That Shown on New Mexico Death Certificate for a Number Holder Previously Reported as Missing at 2-3 (May 19, 1995).
Louisiana law is consistent with agency policy. For example, under Louisiana law, if there is clear and convincing new evidence establishing a date of death other than that determined in the judgment of declaration of death, a Louisiana court will amend the judgment accordingly. See La. Civ. Code art. 56. Clear and convincing evidence “requires more than a ‘preponderance of the evidence’ but less than ‘beyond a reasonable doubt’ [and t]he ‘existence of the disputed fact must be highly probable, that is, much more probable than its non-existence.’” Bass v. Farmer & Cheatham, 658 So.2d 324, 326 (La. 1st Cir. App. 1995), quoting Succession of Lyon, 425 So.2d 1161, 1165 (La. 1984). In addition, under Louisiana law, generally any person who has been absent for five years is presumed to be dead. See Louisiana Civil Code Art. 54. In ruling on a petition for a declaration of death, Louisiana courts consider the facts and circumstances surrounding the individual’s absence. See In re B~, 723 So.2d 1107, 1109 (La. App. 1 Cir. 1998) (finding brother was entitled to declaration of absent sister’s death, where family had no contact with sister since 1983, ad hoc attorney was appointed to represent sister, and tried to locate sister through telephone book of city where sister was last known to reside, and placed missing person ad in papers). In this case, the court appointed an attorney to represent the interest of Lester, the absentee, and fully considered the circumstances and evidence of Lester’s disappearance.
While Louisiana cases discussing the date of presumption of death have not articulated the clear and convincing standard, the courts’ analyses in such cases are consistent with that standard. See Tobin v. United States Deposit and Savings Bank, 15 La. 366 (1905) (while a person’s absence alone would not raise a presumption of death, a person’s absence in combination with surrounding circumstances, such as a family being unaware of a person’s whereabouts, creates a “very strong presumption of death”); Jamison v. Smith, 35 La. Ann. 609 (La. 1883) (the time for establishing a presumption of death due to absence is not fixed, and may be modified according to the circumstances surrounding the absence); Boyd v. New England Mutual Life Insurance Company, 34 La. Ann. 848 (La. 1882) (when direct evidence is not available, death may be established by circumstantial evidence); Davis, Administrator et. al. v. Greve & Wildman, 32 La. Ann. 420 (La. 1880) (sufficient proof of death where the deceased was 80 years old, was last seen attempting to cross a lake returning to his home under dangerous weather conditions in which search efforts were futile); and, Succession of Vogel, 16 La. Ann. 139 (La. 1861) (when an individual’s period of absence was not of sufficient duration to create a legal presumption of death, a judge has the discretion to find that an individual died when an individual’s disappearance occurred under circumstances such as shipwreck, earthquake, war, explosion, or like perils).
The facts of this case are analogous to the facts in D~ because at the time of his disappearance Lester was 70 years old, his car was found abandoned but still running on the Highway 190 bridge, a search did not yield any evidence of him, and his family never saw or heard from him again. Based on the perilous circumstances surrounding Lester’s disappearance, we believe that a Louisiana court could find that his presumed date of death was more probable than not on June XX, 2009. See J~, 35 La.Ann. 609 (finding that the circumstances under which an insured left and the lapse of time since his disappearance fully justified the presumption of his death). Therefore, clear and convincing exists in this case to support the conclusion consistent with the January 2010 Louisiana court judgment that Lester’s presumptive date of death was June XX, 2009, the date he was reported missing.
We now consider whether SSA can accept the January 2010 Louisiana court judgment as evidence of the date of Lester’s death. A state court order is binding on SSA when 1) an issue in a claim for Social Security benefits previously has been determined by a state court of competent jurisdiction; 2) the issue was genuinely contested before the state court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See Social Security Ruling 83-37c, 1983 WL 31272 (adopting Gary v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1974), as agency policy).
This case squarely meets only two prongs of the G~ test, and minimally complies with the other two prongs. The Louisiana court judgment meets the first prong of the G~ test because the Louisiana district court is a state court of competent jurisdiction, and it established Lester’s date of death. Under Louisiana law, a district court has original jurisdiction of all civil and criminal matters. See Louisiana Constitution, Art. 5, § 16. The Louisiana court judgment also meets the second prong of the G~ test because the court judgment followed the trial of the Petition for Declaration of Death where an attorney represented the petitioners and an attorney represented the absentee, Lester. This analysis is consistent with the G~ analysis in another legal opinion issued by the Office of General Counsel. See Memorandum from Regional Chief Counsel, Chicago, to Ass’t Reg. Comm. – MOS, Chicago, Michigan- Court order in wrongful death case as evidence of child status, at 6 (February 10, 2011)
When Lester’s family filed a Petition for the Declaration of Death, Lester was still missing, and the court appointed an attorney to represent his interest.
The Louisiana court judgment also complies with the third prong of the G~ test. Under Louisiana law, domestic relations matters include actions for divorce, annulment of marriage, establishment or disavowal of paternity of children, alimony, support of children, and visitation rights. See Louisiana Rev. Stat. §13:1138. Here, the Louisiana court judgment resulted from a Petition for Declaration of Death. While a Petition for Declaration of Death may not be an issue within the core category of domestic relations cases, the judgment resulting from a Petition for a Declaration of Death could impact a division of marital property. Therefore, we conclude that the instant Louisiana court judgment, which was in response to the Petition for a Declaration of Death, could fall within the scope of a domestic relations case.
It is unclear whether the judgment meets the fourth prong of the G~ test as the Louisiana court judgment states only that Lester’s date of death was June 7, 2009. The judgment did not explain the basis for its declaration of death, but it is clear that the court considered all circumstances and evidence surrounding Lester’s disappearance. Thus, we believe the judgment complies with the fourth prong of the G~ test. As such, SSA can accept the Louisiana court judgment as establishing Lester’s date of death on the date he disappeared, June XX, 2009.
In our opinion, the evidence supports a finding for purposes of establishing the correct date of entitlement of widow’s benefits in this case, that Lester’s date of death was June XX, 2009, the date Lester was reported missing, rather than January XX, 2012, the date the Louisiana Certificate of Death states that Lester’s body was “found.”
Regional Chief Counsel
By: Una McGeehan
Assistant Regional Counsel