TN 19 (01-12)

Citations:

Soc. Sec. Act as Amended in 1996, Sec. 205(a);

20 CFR §§404.721, 404.722

A. Policy for presumption of death of a missing person

When circumstantial evidence does not establish the fact of death as the inevitable conclusion, consider presumption of death after 7 years have elapsed since the disappearance.

Take a claim immediately if an applicant has not already filed one. Take a claim prior to the end of the seven-year period, even if we will disallow a claim because a presumption of death has not yet been made. This will protect benefit rights and can be reopened at a later date based on new evidence. Rules on reopening these prior claims are in GN 04020.040.

1. Requirements for presumption

1. A presumption of death arises when the evidence establishes that the missing person has been absent from his or her residence and has not been heard from for 7 years.

2. The presumption arises without regard to the reason for the absence.

2. Requirements for rebuttal of presumption

1. Once the presumption arises, the worker can rebut only if SSA proves the individual is alive or provides an explanation to account for the individual's absence in a manner consistent with continued life rather than death.

2. The fact that there was financial or marital difficulty or mental instability prior to the disappearance is not sufficient by itself to rebut the presumption.

3. Deny the claim if, in the judgment of the adjudicator, the evidence rebuts the presumption of death.

3. Examples of situations that rebut the presumption of death

Example 1

Evidence in a claim for surviving child's benefits showed that the worker had wages posted to his or her earnings record in the year following the disappearance. The worker established that the wages belonged to him or her and were for work done after his or her “disappearance.'' In this situation, the worker rebutted the presumption of death by evidence (wages belonging to the worker) that the person is still alive after the disappearance.

Example 2

Evidence shows that the worker left the family home shortly after a woman, whom he had been seeing, also disappeared, and that the worker phoned his wife several days after the disappearance to state he intended to begin a new life in California. In this situation, the worker rebutted the presumption of death because the evidence explains the worker's absence in a manner consistent with continued life.

4. Example of a situation that does not rebut the presumption of death

Evidence shows that a person has been missing and not heard from for over 7 years. We did not post any earnings to his record during that time. The spouse files a survivor claim. She states that they were having marital and financial problems at the time of the disappearance. The existence of those problems does not rebut the presumption of death. Therefore, in this case, death is presumed and we might allow a survivors and lump sum death payment claim if the applicant met all other factors of entitlement.

B. Procedure for obtaining evidence for presumption of death of a missing person

Obtain evidence to establish whether the missing person is alive or that accounts for his or her absence in a manner consistent with continued life rather than death. For additional types of evidence that can be secured and considered in the presumption of death determination, follow the procedure in GN 00304.025B.

Take the following actions to obtain evidence to establish presumption of death:

1. Search for an active earnings record for the missing person.

   1. Determine whether the missing person has applied for a Social Security number (SSN), or has had wages or self-employment income (SEI) reported after his or her disappearance.

   2. Develop fully to establish whether wages or SEI posted after his or her disappearance were the missing person's or if they were for work done prior to the disappearance.

2. Attempt to contact the missing person.

   1. Try to contact the missing person by contacting the most recent employer listed on the Detail Earnings Query (DEQY). To request and read the DEQY follow the instruction in MSOM QUERIES 003.005.

   2. Try to contact the missing person at the address shown on Form W-2 by obtaining a microprint copy of Form W-2 (Wage and Tax Statement) as instructed in RM 03870.030.

   3. Try to contact the missing person at the address shown on the SS-5 (Application for a Social Security Card), (if the missing person applied for an SSN after his or her disappearance) by obtaining a microprint of the SS-5.

   4. If the missing person is found and contacted, there can be no presumption of death. After the missing person is found alive, follow the instructions in GN 00304.050B.8., in this section.

3. Complete an SSA-723-F4 (Statement Regarding the Inferred Death of an Individual by Reason of Continued and Unexplained Absence).

   1. Document statements on form SSA-723-F4 from at least three people who knew the missing person and the facts surrounding the disappearance.

      NOTE: While three people who knew the missing person should be available in the vast majority of situations, there may be instances where only one or two people are available to complete form SSA-723-F4. If you cannot find three people, who knew the missing person and the missing person is presumed to be dead, include an explanation in the special determination of actions taken to try to locate three people who knew the missing person.

   2. Include the spouse and claimant and any close family members with whom the missing person would be likely to communicate.

4. Obtain a physical description of the missing person:

   1. Ask the claimant or spouse to provide a physical description of the missing person.

   2. Ask the claimant or spouse for the most recent photograph of the missing person available. Show this photograph to former employers and other contacts to determine whether the number holder (NH) is actually deceased.

5. Obtain a finding of the missing person's death by a court:.

   1. Get the decree or a certified copy of any declaration of death by a court of competent jurisdiction (i.e. a court with the power to decide a case or issue a decree such as a state court's finding that an individual is presumed dead) and a statement of the facts used in the finding.

   2. IMPORTANT: Give the court's declaration of death based on a presumption great weight depending on the supporting evidence, but is not controlling. The number holder may not be presumed dead for purposes of Social Security until he or she has been missing for 7 years and the presumption of death is not rebutted as instructed in GN 00304.050A.1., in this section.

6. Determine a date of presumed death.

   If you are unable to establish that the missing person is alive or obtain evidence that accounts for his or her absence in a manner consistent with continued life rather than death, determine that the missing person is dead. You should:

   1. Establish the date of presumed death on or near the date of disappearance. When material, establish the date of death at or near the date of disappearance if the facts of the case fit into any of the following situations:

      • The missing person encountered some specific peril at or about the time of disappearance.

      • The missing person was suicidal.

      • 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.

      • The missing person was attentive to domestic duties, had a home to which he or she was attached, and suddenly, without explanation, disappeared.

   2. Establish the date of presumed death on the last day of the 7-year period:

      • If any situation exists other than those listed in GN 00304.050B.6.a. in this section, establish the date of death as the last day of the 7-year period beginning with the date of disappearance. For example, if John were missing as of August 07, 1990, we would establish his date of death as August 07, 1997.

      • If only the fact of death is material, presume the date of death to be the last day of the 7-year period.

        NOTE:  If facts permit, you can establish a date of presumed death after the 7-year period but in no case earlier than the last day of the 7-year period beginning with the date of disappearance.

7. Take the following actions if the missing person is found alive:

   1. Disallow the claim.

   2. Tell the missing person that an applicant filed a claim for benefits and that proper disposition of the claim requires that we disclose his or her existence.

   3. Ask the missing person to submit a signed and dated statement containing identifying information.

   4. Ask the missing person for permission to disclose his or her whereabouts with the assurance this will be done only in exceptional circumstances.

      NOTE: For instructions on disclosing information about missing persons, refer to GN 03315.020.

8. Prepare a special determination

   1. Prepare a special determination to support the agency's conclusions with regard to the disappearance of the missing person.

   2. Document the decision on report of contact (RPOC) on the modernized claims system (MCS) screens or on form SSA-553 (Special Determination). Send SSA-553 to the payment center (PC) paperless fax number for filing.

      When using evidentiary documents in a special determination to support the presumption of death determination, follow instructions in GN 01010.360. For electronic evidence documentation and retention when proof of death is involved, refer to instructions in GN 00301.286C.4.