Feds Say Legally Dead Is Slightly Alive

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Miracle Max: He probably owes you money, huh? I'll ask him.

Inigo Montoya: He's dead. He can't talk. 

Max: Whoo-hoo-hoo, look who knows so much. It just so happens that your friend here is only MOSTLY dead. There's a big difference between mostly dead and all dead. Mostly dead is slightly alive. With all dead, well, with all dead there's usually only one thing you can do.

Inigo: What's that? 

Max: Go through his clothes and look for loose change.

The Princess Bride (1987) 

This doesn't quite fit, but it's close and an excuse to quote The Princess Bride. Here the question is the difference between legally dead and slightly alive. As you may remember, last year a judge declared that under Ohio law, Donald Miller was still legally dead, which was a real disappointment to Donald Miller especially since he had argued otherwise at the hearing. See "'No, You're Still Deceased,'" Judge Tells Dead Man," Lowering the Bar (Oct. 10, 2013).

Miller had disappeared in 1986, or at least he disappeared from Ohio (he could still be seen in Florida if you knew where to look). In 1994 Judge Allan Davis declared him legally dead at the request of the wife and kids he left behind, who wanted to apply for Social Security death benefits. (Having vanished, Miller of course was not paying child support.) Under state law a person can be presumed dead after five years. Miller had been gone for eight, and efforts to find him (for child-support purposes) had been unsuccessful.

When Miller showed up again last year, he hoped to establish that he was still alive. The problem is that under state law, this has to be done "within a three-year period from the date of the decree…." So "I don't know where that leaves you," Judge Davis told Miller, "but you're still deceased as far as the law is concerned." And he still is, because he did not appeal that ruling.

Well, he's still deceased as far as Ohio is concerned. To the federal government, though, legally dead is slightly alive. And that means it's looking for loose change. But not in Miller's pockets.

According to this report in The Courier (thanks, William), in April the Social Security Administration sent letters to Miller's two daughters, demanding that they pay back the federal death benefits they got while Miller was legally dead. They got about $100 a week until they were 18, and the payments totaled less than $30,000. Including fees and interest, the SSA sought $47,256 from the daughters. It reportedly said that if it couldn't get the money from them, it would then seek it from the ex-wife, and only if she also couldn't pay would it go after the guy who abandoned them in the first place.

Who is dead.

What happens if you are dead under state law but alive as far as the feds are concerned? Good question. Normally this is the kind of thing to which a federal court (or agency) is required to apply state law. Here's a case, for example, where the Second Circuit held that a woman should get Social Security benefits after her husband died, although the feds argued that she was not in fact his "widow" partly because she had remarried (allegedly and temporarily) seven years after he disappeared in Peru. (He also came back, but had never actually been declared dead.)

While the district court had decided otherwise based on the facts, everybody applied state law to the underlying question. I haven't yet been able to find a similar case in which a legally dead person turned out to be alive, though I suspect there is one out there. In that situation a judge might hold there is a conflict between the state technical-deadness ruling and the federal law allowing the government to get its money back, in which case the federal law would control.

The report says that the SSA is considering the ex-family's request for a waiver, and it seems like that might be the easiest way to deal with this. Seems like it should grant them a waiver and instead go after the real culprit. Except that he's dead, and therefore, as I understand it, can't get a Social Security number or a job that might allow him to pay someone back.

Maybe the Ohio legislature can fix this retroactively? Otherwise, it might take a miracle (or a lot more research) to sort this out.