[Federal Register Volume 60, Number 73 (Monday, April 17, 1995)]
[Rules and Regulations]
[Pages 19163-19165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9029]



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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