Federal Old-Age, Survivors and Disability Insurance; Changes in Evidence Required To Presume a Person Is Dead

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 404

RIN 0960-AD79

Federal Old-Age, Survivors and Disability Insurance; Changes in

Evidence Required To Presume a Person Is Dead

AGENCY: Social Security Administration.

ACTION: Final rules.

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SUMMARY: These regulations provide that, under title II of the Social

Security Act (the Act), a presumption of death arises when the claimant

establishes that an individual has been absent from his or her

residence and not heard from for 7 years. Once the presumption is made,

the burden then shifts to us to rebut the presumption either by

presenting evidence that the missing individual is still alive or by

providing an explanation to account for the individual's absence in a

manner consistent with continued life rather than death.

EFFECTIVE DATE: These rules are effective April 17, 1995.

FOR FURTHER INFORMATION CONTACT: Henry D. Lerner, Legal Assistant,

Division of Regulations and Rulings, Social Security Administration,

640l Security Boulevard, Baltimore, MD 21235, (410) 965-1762.

SUPPLEMENTARY INFORMATION: Under title II of the Act, a lump sum death

payment and monthly survivors' benefits may be payable based on the

earnings of a deceased insured person. In order to ensure that these

benefits are not paid based on mere desertion, any inquiry into

entitlement begins with an assumption that a person last known to be

alive is still living, and that a person's failure to communicate with

a few people and to return to a particular place do not, in themselves,

give rise to a presumption of death. To establish eligibility for such

benefits, the claimant must establish that the insured person is dead.

If proof of death (as described in Secs. 404.720(b) and (c)) is

unavailable, we will presume an insured person is dead if certain

evidence is presented. Under the present Sec. 404.721(b), such evidence

includes signed statements by those in a position to know and other

records which 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.

This evidentiary requirement has yielded two very different

interpretations. It has long been our policy that the claimant must

present the evidence necessary to establish that he or she is entitled

to benefits. Accordingly, for us to presume that an insured person is

dead, the claimant must establish that the insured person not only has

not been heard from for at least 7 years, but also that he or she has

been absent from his or her residence for no apparent reason. If the

insured person's absence can be attributed to known domestic or

financial difficulties or to some other rational reason for leaving

home, death is not presumed. We are not required to establish that the

[[Page 19164]] insured person is still alive to explain the person's

absence.

In contrast to our interpretation, a number of United States Courts

of Appeals have issued decisions which have presumed the death of a

missing person despite the existence of other reasonable explanations

for the person's absence. These court decisions have held that a

presumption of death arises under our regulations when the claimant

shows that a person has been absent from his or her residence and not

heard from for 7 years. Once the claimant has made this showing, these

decisions state that the Secretary bears the burden of rebutting the

presumption of death either by presenting evidence showing that the

missing person is alive or by providing an explanation to account for

the individual's absence in a manner that is consistent with continued

life. As a result of these court decisions, we published Social

Security Acquiescence Rulings applicable in the Third, Fifth, Sixth,

Eighth, Ninth, Tenth, and Eleventh Circuits which adopt this

interpretation of Sec. 404.721.

We published a Notice of Proposed Rulemaking (NPRM) on February 29,

1984, (49 FR 7405-7406), containing proposed revisions of Sec. 404.721

which we hoped would clarify the regulation to avoid the varying

interpretations of the regulation made by the courts. Under the

previously proposed regulation, we would presume the death of the

insured person if signed statements by persons, who were in a position

to know, and other evidence showed that all three of the following

requirements were met:

(1) The insured person has not had contact of any kind with any

relatives, dependents, employers, or friends for at least 7 years.

(2) A diligent search was conducted with the aid of the appropriate

authorities reasonably soon after the insured person's disappearance,

but the search failed to locate or explain the absence of the insured

person.

(3) Circumstances surrounding the insured person's disappearance

allow no reasonable explanation of that person's absence other than

death.

After much deliberation, we have decided that we will not adopt the

rule published in the 1984 NPRM. These final regulations withdraw the

NPRM published at 49 FR 7405-7406 on February 29, 1984.

In light of the Social Security Acquiescence Rulings, we are now

administering two different standards with respect to presumption of

death for entitlement purposes. One standard is based on our historical

interpretation of the regulation; the other on the Social Security

Acquiescence Rulings issued for the seven different circuits as the

result of appellate court decisions. We have reevaluated our policies

and are revising the existing regulation to establish a national policy

based on the interpretation set forth by the courts.

Also, we are revising the regulations to include a new section

which contains information on evidence which will rebut a presumption

of death. Previously, our regulations did not provide guidance on what

constitutes evidence to rebut a presumption of death.

These regulations provide that the presumption of death arises when

the claimant establishes an individual has been absent from his or her

residence and not heard from for 7 years. Once the presumption is made,

the burden then shifts to us to rebut the presumption either by

presenting evidence that the missing individual is still alive or by

providing an explanation to account for the individual's absence in a

manner consistent with continued life rather than death.

We are removing reference to establishing no apparent reason for

the absence from Sec. 404.721(b). We are providing rules concerning the

rebuttal of a presumption of death in Sec. 404.722, a new section to

the regulations. This section provides that a presumption of death made

based on Sec. 404.721(b) will be rebutted if there is evidence

available that the person is still alive or the absence can be

explained in a manner consistent with continued life rather than death.

We are also making a conforming change to Sec. 404.988 (conditions for

reopening) to reflect the change in Sec. 404.721(b).

We will rescind the following Social Security Acquiescence Rulings

by publishing a notice in the Federal Register: AR 86-6(3); AR 86-7(5);

AR 86-8(6); AR 86-9(9); AR 86-10(10); AR-86-11(11); and AR 93-6(8).

These regulations were published in the Federal Register (59 FR

37002) as an NPRM on July 20, 1994. Interested parties were given 60

days to submit comments. We received no comments and are adopting the

regulations as proposed.

Regulatory Procedures

Executive Order No. 12866

We have consulted with the Office of Management and Budget (OMB)

and determined that these rules do not meet the criteria for a

significant regulatory action under Executive Order 12866. Thus, they

were not subject to OMB review.

Regulatory Flexibility Act

We certify that these regulations will not have a significant

economic impact on a substantial number of small entities because these

rules will only affect individuals. Therefore, a regulatory flexibility

analysis as provided in Pub. L. 96-354, the Regulatory Flexibility Act,

is not required.

Paperwork Reduction Act

These regulations impose no new reporting or recordkeeping

requirements requiring Office of Management and Budget clearance.

(Catalog of Federal Domestic Assistance Program Nos. 93.802, Social

Security--Disability Insurance; 93.803, Social Security--Retirement

Insurance; and 93.805, Social Security--Survivors Insurance.)

List of Subjects in 20 CFR Part 404

Administrative practice and procedure, Aged, Blind, Death benefits,

Old-Age, Survivors, and Disability Insurance, Reporting and

recordkeeping requirements, Social Security.

Dated: February 27, 1995.

Shirley S. Chater,

Commissioner of Social Security.

For the reasons set out in the preamble, we are amending subparts H

and J of part 404 of 20 CFR chapter III as follows:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE

(1950- )

1. The authority citation for subpart H of part 404 continues to

read as follows:

Authority: Secs. 205(a) and 1102 of the Social Security Act; 42

U.S.C. 405(a) and 1302.

2. Section 404.721 is amended by revising paragraph (b) to read as

follows:

Sec. 404.721 Evidence to presume a person is dead.

* * * * *

(b) Signed statements by those in a position to know and other

records which show that the person has been absent from his or her

residence and has not been heard from for at least 7 years. If the

presumption of death is not rebutted pursuant to Sec. 404.722, 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.

* * * * *

3. New Sec. 404.722 is added to read as follows: [[Page 19165]]

Sec. 404.722 Rebuttal of a presumption of death.

A presumption of death made based on Sec. 404.721(b) can be

rebutted by evidence that establishes that the person is still alive or

explains the individual's absence in a manner consistent with continued

life rather than death.

Example 1: Evidence in a claim for surviving child's benefits

showed that the worker had wages posted to his earnings record in

the year following the disappearance. It was established that the

wages belonged to the worker and were for work done after his

``disappearance.'' In this situation, the presumption of death is

rebutted 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 presumption of death is rebutted

because the evidence explains the worker's absence in a manner

consistent with continued life.

4. The authority citation for subpart J of part 404 continues to

read as follows:

Authority: Secs. 201(j), 205(a), (b), (d)-(h), and (j), 221(d),

and 1102 of the Social Security Act; 31 U.S.C. 3720A; 42 U.S.C.

401(j), 405(a), (b), (d)-(h), and (j), 421(d), and 1302.

5. Paragraph (c)(4) introductory text and (c)(4)(i) of Sec. 404.988

are revised to read as follows:

Sec. 404.988 Conditions for reopening.

* * * * *

(c) * * *

(4) Your claim was denied because you did not prove that a person

died, and the death is later established--

(i) By a presumption of death under Sec. 404.721(b); or

* * * * *

[FR Doc. 95-9029 Filed 4-14-95; 8:45 am]

BILLING CODE 4190-29-P