A. PR 95-506 Legality of Establishment of Date of Death Different From That Shown on a New Mexico Death Certificate for a Number Holder Previously Reported Missing - Adrian J. Q~

DATE: May 19, 1995

1. SYLLABUS

Based on the laws of New Mexico, it is our opinion that SSA may establish the date of a number holder's death as the date the number holder was reported missing, rather than the subsequent date the remains were found.

2. OPINION

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.