Legally Dead but Alive: What Happens When a Death Declaration Is Wrong

The man a judge refused to bring back to life

Donald Miller left his home in Arcadia, Ohio, in 1986 after losing his job. NPR reports that authorities searched for him but found no trace, and after eight years without a sign of him, he was declared dead in 1994. His children received Social Security death benefits.

In 2005 he turned up in Fostoria, a nearby town, and his parents had to tell him he had been declared dead, according to NPR. The BBC reports he then tried to apply for a driving licence. The legal problem surfaced in October 2013, when he stood in Hancock County probate court and asked Judge Allan Davis to recognize that he was alive.

The judge said no. "We've got the obvious here. A man sitting in the courtroom; he appears to be in good health," Davis said, but the law was clear, and the ruling could not be reversed after three years. Legal News, reporting the ABA Journal story, adds that Miller wanted the ruling reversed to get a driver's license and reinstate his Social Security number.

Key dates in the Miller case

Why Ohio sets a deadline

Under Ohio's presumed decedents law, a presumption of death arises when a person has been continuously absent from their last home for five years without being heard from. It can arise sooner if the person was exposed to a specific peril of death when the absence began.

The same chapter lets the probate court vacate a death decree within three years of the decree if it receives satisfactory proof that the person is alive. After a decree is vacated, property that passed to heirs and beneficiaries can be recovered from them.

NPR's commentary points to the other side of that rule. Without the three-year limit, the Miller family would have been required to repay all the Social Security benefits the children received. The BBC reports that his former wife, as a result of the ruling, did not have to return those funds.

Other states have their own rules. If you are dealing with a declaration of death anywhere, a probate attorney in that state can tell you which deadlines apply.

What to do if a death report is wrong

Three records can carry the error, and they are fixed in different places.

1. A court declaration of death. This is handled in the court that issued it. In Ohio, the window to vacate it is three years.
2. A state death record. States set their own correction process. Washington, for example, uses an Affidavit for Correction (DOH 422-034) along with a copy of your photo ID, proof of relationship if required, and any required supporting proof documents, and lists a two-month processing turnaround at the time of our review.
3. A Social Security record. If you suspect you are incorrectly listed as deceased there, Social Security says to visit your local office as soon as possible and bring one piece of current identification, such as a passport or driver's license.

Fixing a Social Security death report

Social Security requires original documents or copies certified by the agency that issued them. It does not accept photocopies or notarized copies, and it cannot accept an expired document or a receipt showing you applied for one.

Once the record is corrected, the agency offers a letter, called the "Erroneous Death Case - Third Party Contact" Notice, that you can give to banks, doctors or others to show the death report was in error.

The agency also states that less than one-third of 1 percent of the millions of death reports it receives each year are erroneous. It notes that benefits are stopped in the short term, which can cause financial hardship until the record is fixed.