It seems to me that a “legally dead” ruling cannot be challenged by an interested third-party, such as a wife or relative or debtor or anyone else, beyond the statute of limitations. This makes sense. However, it can and should be challengeable by the individual declared legally dead if said person presents himself.
This is the case for no other reason than the “legally dead” individual’s due process rights have been violated as he could have never received legally sufficient notice and service of the legal action against him to where the court could obtain personal jurisdiction.
Failure of notice and service is always something which can overcome a judgment, allowing it to be set aside, in any court system in the U.S. The reason is because these are fundamental U.S. constitutional rights, which are mirrored in each state’s constitution.
By John on 2013 10 10, 9:07 am CDT
Sigh. Once again, COMMON SENSE, R.I.P.
By JimB on 2013 10 10, 9:26 am CDT
There’s a very popular book, if one believes in it, that proves one can “rise from the dead .” Under current law then, the key issue becomes whether a legally but not physically dead person ( and the legal ramifications of his or her death) rise from the dead to accrue the legal benefits to himself or herself, and to lawful beneficiaries, that society affords under the circumstances.
By charlegman on 2013 10 10, 10:17 am CDT
JimB, I couldn’t agree with you more.
By LoriS on 2013 10 10, 12:41 pm CDT
I seem to recall a line from the movie “The Princess Bride” where Billy Crystal’s character, Mad Max the Wizard, says something like “mostly dead isn’t completely dead” and then makes a miracle pill to restore life. But then, its just a children’s movie…..
By Michael W. Raridon on 2013 10 10, 1:15 pm CDT
Is Miller related to Shirley MacLaine?
By Pushkin on 2013 10 10, 1:57 pm CDT
“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass - a idiot”.
By mikeCG on 2013 10 10, 2:34 pm CDT
When the law is an ass, it must be kicked. John is spot on. Makes it tough on all of us to explain the law to clients and/or get them to respect the la when idiotic decisions are routinely handed down
By Andre on 2013 10 10, 3:01 pm CDT
It is a sad state when a judge is lacking in intellect, creativity, and common sense to rule that the person appearing before him is dead and that such determination is forever fixed. John is spot on—that a ruling that a person is legally dead cannot be challenged by a third-party, but certainly the person declared dead should be able to challenge it. Was the alleged decedent Mark Twain by any chance?
By Alan on 2013 10 10, 3:38 pm CDT
It seems to me the legal presumption of death is trumped by the actual appearance of a live person, at least insofar as third party rights are not affected. See eg Scott v McNeal 154 US 34 (1894)
By Andrew on 2013 10 10, 3:45 pm CDT
Mark Twain: “Reports of my death have been greatly exaggerated.”
By JimB on 2013 10 10, 3:51 pm CDT
Thank you, Andrew:
“The form of the order appointing the administrator is peculiar. By that order, after reciting that the plaintiff disappeared more than seven years before, and had not since been seen or heard of by his relatives and acquaintances, and that the circumstances at and immediately after the time when he was last seen, about eight years ago, were such as to give them the belief that he was murdered about that time, the probate court finds that he ‘is dead to all legal intents and purposes, having died on or about March 25, 1888’—that is to say, not at the time of his supposed murder, seven or eight years before, but within a month before the filing of the petition for administration.
“The order also, after directing that Milroy be appointed administrator, purports to direct that ‘letters of guardianship’ issue to him upon his giving bond…
“The fundamental question in the case is whether letters of administration upon the estate of a person who is in fact alive have any validity or effect as against him.
“By the law of England and America before the Declaration of Independence, and for almost a century afterwards, the absolute nullity of such letters was treated as beyond dispute.”
By JimB on 2013 10 10, 3:59 pm CDT
This sounds dangerous. What sort of deterrent to crime can you have for someone who is already dead?
By NoleLaw on 2013 10 10, 4:22 pm CDT
I wonder if ObamaCare’s individual mandate applies to a legally dead person, or for that matter an un-dead person?
By Yankee on 2013 10 10, 5:06 pm CDT
I agree with John’s comments posted on: Oct. 10, 2013@9:07AM CDT. ” Failure of notice and service is always something which can overcome a judgement. Allowing it to be set aside. In any court system in the United States. The reason is because these are fundamental United States constitutional rights, which are mirrored in each state’s constitution.” Something that can be fixed.
By D. O'neal Lockhart on 2013 10 10, 5:56 pm CDT
He was only MOSTLY dead…
By Not a Witch on 2013 10 10, 6:03 pm CDT
There really is a very simple solution to this dilemma. Make challenging one’s own declaration of death a capital offense.
By William Able on 2013 10 10, 6:50 pm CDT
#14—Your pgoint is more interesting than you intended. Forget Obamacare for a moment. Suppose this guy now oes out and commits all sorts of horrible crimes. How could he be prosecuted? He’s dead.
Suppose he’s sentenced to death. Doesn’t he get released immediately on the grounds that the law carried out that sentence long ago?
By AndytheLawyer on 2013 10 10, 7:26 pm CDT
Well the audacity of him showing up and claiming he now alive after all these years…it appears that everyone has gotten on well without him and the wife and kids have been getting paid.
Then he shows up, and what? No happy reunion? No, I’m glad you are back? No, Hey daddy is alive?
No, he wants a drivers license and a social security #, and this means that the social security will need to be repaid.
Must be nice to be so loved.
By concernedcitizen on 2013 10 10, 7:58 pm CDT
Not to worry Number 14: Brain-dead people are perhaps exempt from the requirements of the AHCA.
By Paul the Magyar on 2013 10 10, 9:01 pm CDT
So, it would stand to reason that the court could not well punish him if he sauntered through the middle of hearings belting out a drunken rendition of “Isn’t it Grand, Boys, to be Bloody Well Dead?”
“Let’s not have a snivel,
Let’s have a bloody good cry,
And always remember, the longer you live,
The sooner you bloody well die.”
By B. McLeod on 2013 10 11, 1:53 am CDT
He’s not dead. He’s resting.
By E on 2013 10 11, 2:27 am CDT
If ever there was a time to take judicial notice of a fact, this is it.
By Christian on 2013 10 11, 2:57 am CDT
Why cant he get a driver’s license anyway? At least he’ll be able to vote in Cleveland and Florida.
By Rick on 2013 10 11, 4:41 am CDT
So basically he is now legally a zombie?
By Tino on 2013 10 11, 4:55 am CDT
I believe the judge failed to follow well established precedent set forth in Monty Python v. The Holy Grail, (1975). The ruling was as follows:
Dead Collector: Bring out yer dead!
[A large man appears with a (seemingly) dead man over his shoulder]
Large Man: Here’s one.
Dead Collector: Nine pence.
“Dead” Man: I’m not dead.
Dead Collector: What?
Large Man: Nothing. [hands the collector his money] There’s your nine pence.
“Dead” Man: I’m not dead!
Dead Collector: ‘Ere, he says he’s not dead.
Large Man: Yes he is.
“Dead” Man: I’m not.
Dead Collector: He isn’t.
Large Man: Well, he will be soon, he’s very ill.
“Dead” Man: I’m getting better.
Large Man: No you’re not, you’ll be stone dead in a moment.
Dead Collector: Well, I can’t take him like that. It’s against regulations.
As noted therein, even if someone says you’re dead, if you say you’re not dead, it is against regulations to rule you as deceased.
By MJnevetS on 2013 10 11, 5:09 am CDT
I think this is another example of the law taking a sideways approach in order to prevent substantial injustice. In this case, a numb-nut decides to skip out on his family for some eight years and the wife, having needed the income supplement of death benefits from Social Security, couldn’t afford it if the husband became not-dead.
I agree, it seems really screwy, but let’s face it - screwy is better than ruinous.
By Edmund Wilfong on 2013 10 11, 5:20 am CDT
I knew tha Yankee would no be able to resist getting Obama or liberals into this somehow.
By donniem23 on 2013 10 11, 5:22 am CDT
Fraud Upon Court, better stated a Fraud Upon the Judicial System, can result from an officer of the court, making a fool of the Judicial System, which is a crime which the judge can pleaad guility and fix by voiding the ruling which resulted in Fraud.
By Donald W Parkyn, not an attorney on 2013 10 11, 5:26 am CDT
What peculiar tricks our great bureaucracies can play!
A man who was once declared dead is still alive today.
He disappeared from sight some twenty-seven years ago;
But is breathing now as eye-sight testimony will show.
Just so our Saviour Christ was once buried in the earth:
Cold, hard mortal soil which gave Him His second birth.
His unplanned-for resurrection proves that none of us can say
Whether he who is now dying will not live again someday.
By Samuel Johnson on 2013 10 11, 5:33 am CDT
He can’t convince the court that he is not dead?
Why not then petition to have himself appointed as sole administrator of his own estate.
Until his actual death someday in the future he can administer his “life estate”—and do whatever he can step by step to put “life” back together.
By Anonymous on 2013 10 11, 6:15 am CDT
And, again, we wonder why the public holds the judiciary in contempt? It’s not legal contempt, mind you, it’s the very common meaning of the term—
“If the law presumes that, Sir, the law is an ass.”—from Dickens, The Pickwick Papers.
Judge Nincompoop should have taken judicial notice of the FACT the man is alive, just as Christian (no. 23) suggested.
As for his wife’s plea that she cannot repay Social Security the monies advanced to her & the children as “survivors,” this is the wrong venue to consider that issue. The Social Security Administration considers that issue in overpayment cases where, as here, the recipients are “without fault” in getting the money in the first place.
By SavannahGuy on 2013 10 11, 6:47 am CDT
Does that mean if he kills another person he cannot be tried and imprisoned? How can a legally dead person be indicted?
By James Lindon on 2013 10 11, 6:51 am CDT
Perhaps a creative solution would be that the “dead” man be allowed to change his name and get a new SS# and drivers license. It may require the court to craft some type of mitigating exception and the SS Admin to accept it but that avoids the “notice” problem in the first case.
By Barrister506 on 2013 10 11, 6:51 am CDT
Query: Can such a determination be made based solely on spousal lperformance in the bedroom?
By Hank on 2013 10 11, 6:57 am CDT
He should go start a business and refuse to pay tax on it. After all the dead can’t be required to pay the king (this is why we left England). And the outcome of the case might be very different if the government was requesting the same relief.
By Fresnojake on 2013 10 11, 7:00 am CDT
On a slightly more serious note if the argument that the failure of notice is he determining factor not that not bring uncertainty to every decision which utilize service by publication? I believe the death hearing would have needed to be publish and if that fact alone overturns a decision without regard for time have we not lost certainty in a large number of cases?
By Frasnojake on 2013 10 11, 7:08 am CDT
I would think his status as affirmed by the court would be rather freeing—a state about which some of us fantasize. Perhaps there is the ultimate workaround to life after all and having one’s cake while declaring it eaten.
By jacc on 2013 10 11, 7:11 am CDT
Once again, a situation where bad facts make for bad law; The judge obviously was sympathetic to the wife and equitable was trying to reach a result that would not require her to repay the benefits she had drawn when she had no knowledge ofhis status and apparently legitimately thought he was dead. The real flaw here is that an innocent person (the spouse) should not suffedly find herself being forced to repay, possible finding herself now married when she thought she was a widow (or even possibly guilty of bigamy if she had remarried).
By NoVaAttorney on 2013 10 11, 7:19 am CDT
Why does he even need a driver’s license? He can’t be prosecuted for driving without a license if he is already dead!
By LegalRecruiter on 2013 10 11, 7:27 am CDT
Perhaps he can go back and be “born again.”
By B. McLeod on 2013 10 11, 7:29 am CDT
If the wife is not at fault for causing the over payment and can’t afford to pay it back, she will not be charged for the overpayment. She does not have to go to court. She can present the facts to a SSA Administrative Law Judge.
By Ira Epstein on 2013 10 11, 7:30 am CDT
Oh, well, if its been 3 years the law is clear and that settles the matter. I thought judges were paid to exercise judgment. I can find high school students to read the regs say and come to a better conclusion.
By SlipKid on 2013 10 11, 7:55 am CDT
The law deals constantly with creating “facts” out of thin air to set up equity, so the notion that this guy’s ‘death’ would be found true in order to lead to equity (protect the good faith efforts of the wife from an unfair situation of losing her survivor benefits) is hardly a surprise. (#42 raises an interesting notion though—was the judge’s presumption of what would happen to the wife justified? But, let’s leave that aside for this purpose.)
And, scintillating headlines aside, the judge will still need to do something to deal with the actual real live fact on the ground—there is a human walking the earth. I’m sure there’s something afoot to make sure the silly notions above aren’t going to happen—he won’t be left free of criminal liability because he doesn’t exist, etc. He’ll probably craft a new birth cert by judicial fiat, and essentially create a new existence (60 years into its life). The main consequence for formerly-dead-guy is he won’t have his SS benefits from his ‘first life’. Sad, but a consequence of his own actions. This will not be good for him, but I’m not sure I’m sympathetic to having to cover for his poor choices.
By Michael on 2013 10 11, 7:56 am CDT
There are so many funny comments here, I hate to make a serious one.
With regard to the Social Security benefits, this is an appropriate case for a private law to protect the “widow” and her children. If there is a benefit overpayment, I think the putative “dead man” should have those deducted from his benefits.
By KurtLaw in Michigan on 2013 10 11, 8:04 am CDT
Thank you MJnevetS
Or the Judge could issue this order:
(1) Based on new evidence not previously offered, the Judgment of death is hereby vacated since it was clearly erroneous and without basis;
(2) It is further ordered that the Social Benefits received were received in good faith and shall not be returned;
(3) The Petitioner is legally alive; and
(4) If any parties wishes to appeal, authority is granted instanter. The docket clerk will give you the appellate court’s address.
Off the record - if any of the parties or counsel are ever in this court again on this issue - I will issue sanctions, instanter.
Are we done here???
By Two to Beam Up on 2013 10 11, 8:04 am CDT
Isn’t this an “actual innocence” situation? Shouldn’t that trump the 3 year limitations?
By Old Uncle Albert on 2013 10 11, 8:06 am CDT
Judge: You’re legally dead. I can’t change that.
Man: But what do I do? I’m here. I need a drivers license, Social Security card to get a job.
Spectator with brown beard wearing white flowing robe: Sir, you must be born again.
By Mike on 2013 10 11, 8:12 am CDT
@13 NoleLaw - I was thinking the same thing. If you’re legally dead, and therefore a non-person, you can’t commit crimes. You’ve got a free pass.
I wouldn’t want to put that to the test, of course.
Also, if he had accumulated wealth, in the semi-hereafter, and had left-over lifetime debt (especially fines), I suspect the court would have figured out a way to give him his life back and take his money.
By John2510 on 2013 10 11, 8:12 am CDT
Judge to legally dead man, “How dare you remain alive when this state has declared you legally dead! We must enforce our laws. The sentence for this violation is the death penalty!”
Lewis Carroll and Franz Kafka would be proud.
By Provided, however on 2013 10 11, 8:19 am CDT
Well, looks like patient zero is in Ohio. Everyone get ready…
By Lucky on 2013 10 11, 8:20 am CDT
for the insurance companies, death would be a pretty dramatic ‘prior existing condition’ - though I don’t suppose they get many applications from the formerly dead. And as Yankee points out, insurers can’t deny coverage based on such conditions as easily as they have been able to do.
By John G on 2013 10 11, 8:22 am CDT
@47 It would be nice to think actual innocence exonerates people, but in many cases that is not true—and in almost all cases it is difficult and would be impossible thanks to DA’s who cannot admit mistakes or malevolence.
Personally, I think the judges ruling will stand if the plaintiff does not appeal. But if he does, it will likely be overturned not because of a lack of notice but because of notice of the fact that he is alive.
And if he committed crimes, he would be prosecuted without any issue as a John Doe.
By LawLOL on 2013 10 11, 8:25 am CDT
If Miller is now murdered, will the killer go free as Miller was already dead?
By Steve on 2013 10 11, 8:35 am CDT
If a dead man were to appear as counsel on a criminal case, his actions would likely be held as effective under the Strickland standard.
By Scott Key on 2013 10 11, 8:41 am CDT
There seems to have been a lot of poor judging and lawyering in this case.
The judge should not have been persuaded by the wife’s argument. She would not have to repay SSA. Sections 204(b) and 1870(c) of the Social Security Act provide that “there shall be no adjustment or recovery in any case where an incorrect payment . . . has been made . . . with respect to an individual…who is without fault..and adjustment or recovery would….be against equity and good conscience.”
I really think this was more about the wife’s desire to CONTINUE being paid, i.e., receiving Miller’s retirement benefits as if she were still his widow. I don’t know how any judge could accept that as a valid justification, when the allegedly dead person is standing right there in front of him.
The wife also would not have committed bigamy if she remarried in the intervening period (which I doubt , since that could have affected her survivor benefit eligibility). Clearly, she lacked the requisite knowledge and criminal intent. Moreover, virtually all bigamy laws have specific exceptions to cover situations where the spouse is presumed dead.
MIller’s lawyer’s comment that his client cannot afford to challenge the SSA is also bunk. Even when SSA pays benefits based on a presumption of death, that presumption is, understandably, rebutted if the person is later proven to be alive. The SSA makes its own determination in this regard, independent of any state court finding. SS Act, section 1721. Submitting the appropriate paperwork to SSA should not cost Miller anything.
By Kevin on 2013 10 11, 8:44 am CDT
That’s how I feel when I skim the Friday morning ABA Journal…..
By B.McKleob on 2013 10 11, 8:45 am CDT
smells of monty python’s “bring out your dead” and “i’m not dead yet.”
By James Lindon on 2013 10 11, 8:46 am CDT
@57…That’s a good one McKleob….always a great insightful comment by you!
By Pullkin on 2013 10 11, 8:47 am CDT
Judge to Mr. Miller: “You’re not merely dead, you’re really most sincerely dead.”
L. Frank Baum would be proud.
By Meinhardt Raabe on 2013 10 11, 8:51 am CDT
Life imitates art:
Doc Daneeka had a similar problem in Catch-22. He forged his name onto a flight manifest and when that plane crashed, he was declared dead. He couldn’t get his wife to vouch for him because she didn’t want to lose her widow’s benefits.
Best. Novel. Ever.
By lambikins on 2013 10 11, 8:55 am CDT
To #19 concernedcitizen - are you serious? Where is the love from the family that this man left years ago? The wife who had to raise the children on her own? The children who were denied the love of a father? And his excuse? I was drunk? So we know where his priorities were at the time. AND we know where they are now. I want a drivers license, I want social security. Not I want to make amends to the loved ones I so badly hurt. He was and is a selfish, self-centered, lying, cheating, cold-hearted jerk and deserves NOTHING but misery.
By C. Johnson on 2013 10 11, 9:02 am CDT
Would someone please get it over with and invoke Godwin’s Law?
By Oort Cloud on 2013 10 11, 9:07 am CDT
He’s just taking some inspiration from Hotblack Desiato—spending some time dead for tax purposes. Douglass Adams would be so proud!
By American of African Descent on 2013 10 11, 9:12 am CDT
Why not simply declare that for purposes of the payments past and future to the pseudo-widow and restricted to her only and his account he is not dead by regulation but for all other purposes he is dead. Solomon does not live in Ohio. P could then get his driver’s license—if he really wanted one.
How does DHS deal with this fellow? He could get a job with the TSA, the walking dead.
Further, if the guy’s lawyer were creative he could certianly have found a judge who could raise the dead, although he would have filed in federal court ab initio.
By JACC on 2013 10 11, 9:19 am CDT
So I assume if someone kills him, they couldn’t be convicted of murder since you can’t murder a dead person?
By Doug in Texas on 2013 10 11, 9:19 am CDT
Repayment won’t be required, unless there’s proof of collusion and fraud, along the lines of “You disappear, and I’ll collect the money.”
The issue here might be that the widow wants to KEEP collecting the SS death benefits. That’s not going to happen. “But I’ve gotten used to them” isn’t a strong legal argument.
By Ham Solo on 2013 10 11, 9:25 am CDT
In the end its not going to really matter cuz his ex-wife is gonna kill him anyway for coming back and slaughtering her cash cow benefits.
By CrazyCatLady on 2013 10 11, 9:27 am CDT
Looks like we just saw the first “Death Panel” that Palin was warning against! Then, again, maybe it’s the panelist that is brain dead.
By The Jet on 2013 10 11, 9:28 am CDT
As someone who has handled an absentee’s estate, I can completely understand the former wife’s quagmire. Not only is the “survivor” mourning the disappearance of a loved one, her/his life is negatively impacted, and s/he cannot move on. Unless the “survivor” has the absentee’s power of attorney, the survivor has no legal means to close the absentee’s bank accounts, sell real estate to satisfy a mortgage, etc. Thus, if the “survivor” lacks the means of paying the mortgage, joint credit card debts, etc. her/his credit rating will nosedive as those debts go into default and collections or foreclosure. The “survivor” cannot remarry - no means of obtaining a divorce (at least in my jurisdiction - service by publication isn’t allowed for divorce), but not a widow(er) either. The “survivor” cannot redeem life insurance policies to pay the absentee’s debts - insurance companies require either a death certificate or a judicial decree of death.
At least in the jurisdiction where I practice, a declaration of death cannot be entered without evidence that the circumstances surrounding the disappearance indicate the absentee is likely deceased. Mere absence, regardless of the duration, is insufficient. The petitioning attorney must show that reasonable efforts were undertaken to serve notice of the petition and scheduled hearing before alternate service is authorized. In the case that I handled, the court required that notice of the hearing be published once per week for three consecutive weeks in two newspapers of general circulation and the county legal journal - a total of nine times. And the probate court has jurisdiction as long as the absentee’s domicile was in that county at the time of his/her disappearance. Thus, the lack of notice or in personam jurisdiction arguments do not persuade me.
Considering the emotional and financial distress that the man’s disappearance would have imposed upon his spouse and children, who could blame them for being angry when he strolls back into town and requests that the declaration of death be set aside so he can collect Social Security and get a driver’s license? His current situation as a living decedent is his own fault because he fled to avoid paying child support (http://rt.com/usa/ohio-man-legally-dead-916/), and now he has to deal with the consequences.
By Pat on 2013 10 11, 9:33 am CDT
“What would you do if there was no tomorrow?”
“That means we could do whatever we want!! No consequences!!!”
Seriously, can this guy really rely on failure of notice and service when he intentionally made himself unavailable for notice and service by skipping out on his family and society for 8 years? That does not seem just either.
Sorry, dude. You wanted to be dead, and now your’re dead. Changed your mind? Tough.
By SH on 2013 10 11, 9:35 am CDT
From what I’ve been able to find, the declaration of death in absentia (as opposed to legal death) is only for the purposes of clearing someone’s estate and benefits under the law. He could still be charged with a crime, be subject to any provisions of other laws (Obamacare included) that deal with legal persons, and otherwise be held accountable under the law. I don’t think this is the ‘get out of jail free card’ everyone seems to be alluding to.
By Vanarambaion on 2013 10 11, 9:37 am CDT
@63 - I’ll satisfy Godwin’s Law, because after all, isn’t what this judge did the exact opposite of what Nazis did? Perhaps he ought to be commended.
@52 - Death would be a pre-existing condition, but probably a very good one from the insurance companies’ perspective. Nobody gets less healthcare than a dead man.
By NoleLaw on 2013 10 11, 9:40 am CDT
This stupid decision creates a great opportunity to really have some fun. I’m amazed however at the number of members of our profession who try to address judicial thickness with some logical argument. The only appropriate response to this decision is something like “Say What!”
By benfranklin2 on 2013 10 11, 9:42 am CDT
The Judge only declared him “legally dead,” not actually dead.
If you’re concerned about him getting a free pass because he’s legally dead, what’s to stop law enforcement from imprisoning him or executing him, or even just shooting him on the street? If he can’t be charged because he’s legally dead, by the same logic he can’t be killed because he’s legally dead.
Is there, perhaps, more to the story? Would he have to show some extraordinary circumstances to overcome the three year statute? Has anyone done the research, or are we all too clever?
By ElTwo on 2013 10 11, 9:53 am CDT
Talk about legal fictions and formalities trumping reality! I don’t think I could say it any better than everyone else already has.
By NYTC on 2013 10 11, 9:54 am CDT
Hats off to the people dropping Catch-22, Hitchhiker’s Guide and Monty Python references. Hilarious.
By Fiction Fan on 2013 10 11, 9:55 am CDT
My husband is in the same way—his second family from a paternity suit said that he died in 2001 even though he had put court documents in tact because the second family thought he was rich not knowing that his job entailed child support payments for his first family and only had a job where their attorney had erronously taken the business in the child support matter over not realizing the implications resulting from the filing. Almost destroying my benefits in the long run, To make a long story short this is going for judicial reveiw in court after being dismissed in a higher court where I previously filed a while back that didnot have jurisdiction because of the support case.
By Joann nicola Lutz de-diStefano-Phillips on 2013 10 11, 9:56 am CDT
What was his date of death. Can he petition for a birth certificate establishing his date of birth the following day? I know there are laws for obtaining a birth certificate when one is not issued at birth. the only problem will be his age. He can’t drive, vote, hold a job, etc. for a few more years until he become of age.
By Confused???????? on 2013 10 11, 10:06 am CDT
My husband in question is John Phillips of the Mamas and Papas. CEO of WJJL Radio . Nobody I know wants the case any suggestions? It doesnt really remove him from the ACS case. I’m giving the court a second chance by SM&C case.
By Joann nicola Lutz DediStefano Phillips on 2013 10 11, 10:20 am CDT
The guy should be thrilled. Since the fully alive guy is forever legally dead, the government certainly cannot obligate him to pay taxes. Given this fact, he has ALSO managed to completely defeat the age old adage: The only two things that are certain are death and taxes. He has proved this adage completely wrong (after beating both)!! Congratulations indeed!!
By Kent G on 2013 10 11, 10:45 am CDT
Lawyer: So, then it is possible that the patient was alive when you began the autopsy?
Lawyer: How can you be so sure, Doctor?
Witness: Because his brain was sitting on my desk in a jar.
Lawyer: But could the patient have still been alive nevertheless?
Witness: It is possible that he could have been alive and practicing law somewhere.
By Nonlawyer on 2013 10 11, 10:49 am CDT
This legal dilemma reminds me of an appropriate poem:
One bright day, in the middle of the night;
Two dead boys got up to fight.
Back to back they faced each other;
They drew their swords and shot each other.
A deaf policeman heard the noise,
and came to kill the two dead boys.
And if you don’t believe me, you can ask the blind ma, as he saw it too.
By Kent G on 2013 10 11, 10:52 am CDT
The federal government has adopted a uniform (albeit partly unconstitutional) definition of marriage in the Defense of Marriage Act, but it has not adopted a Defense of Death Act. Until it does, each state is free to define death however it wishes. Mr. Miller is legally dead in Ohio, but he may be able to be among the living if he moves to Indiana or Illinois. I would advise him to do so immediately, for anyone who kills him in Ohio would have a good defense: how can the accused have killed someone in 2013 who was declared incontrovertibly and unappealably dead in 1994?
By Isaac Laquedem on 2013 10 11, 11:01 am CDT
Many clever and funny comments above.
This doesn’t feel like Lewis Carroll’s brand of humor to me, but its almost enough to make Kafka rise again.
By David Barbour on 2013 10 11, 11:12 am CDT
If illegal aliens can get a drivers license in California, why can’t a dead man?
By BOB on 2013 10 11, 11:26 am CDT
If he is legally dead, then there is no liability for “murdering” a “dead” man. But he could still be punished for any crime he commits.
By Zevys on 2013 10 11, 11:43 am CDT
#21: With Unknown Hinson’s “Live and Undead” LP providing background…
By greyghost on 2013 10 11, 11:45 am CDT
It should be an easy waiver for the wife of the “overpayment” of SS death benefits; it basically fits all the points of when a waiver should be granted. The “overpayment” should, of course, be paid by the husband, who “knew or should have known” that his inaction could lead to such a scenario. Very simple situation for that portion of the “problem.”
By Halli on 2013 10 11, 11:47 am CDT
And now there’d be an actual example of a dead person trying to vote. The Republicans in Ohio should be championing this as proof of rampant voter fraud!
By OKBankLaw on 2013 10 11, 11:50 am CDT
Other peolple have problems in a similar vein:
On February 2, 2012, the Honorable Patrick P. O’Carroll, Jr., Inspector General, Social Security Administration, reported to U.S. House of Representatives Committee on Ways and Means,
Subcommittee on Social Security:
In the June 2008 report, we determined that, from January 2004 through April 2007, SSA’s publication of the DMF [SSA’s Death Master File] resulted in the potential exposure of PII [personally identifiable information ] for more than 20,000 living individuals erroneously listed as deceased on the DMF. In some cases, these individuals’ PII was still available for free viewing on the Internet—on ancestry sites like genealogy.com and familysearch.org—at the time of our report
Each DMF record usually includes the following: SSN, full name, date of birth, and date of death.
By Tnotr on 2013 10 11, 11:58 am CDT
If we can grant a drivers license to those who are not legally here, we should be able to grant them to someone who is not legally alive. After all, they are both physicality present, and able to drive.
By Res Ipsa on 2013 10 11, 12:03 pm CDT
The Day of Walking Dead… Halloween is near!
By Anna Gray on 2013 10 11, 12:19 pm CDT
This tiny-article is a bit confusing. If he was declared dead in 1994 after being missing for 8 years, his youngest child would be about 25 now. What kind of death benefits for his children is his wife still receiving?
Aside from the obvious fact that he is still alive, he’s apparently done without a driver’s license for over half his adult life, so I don’t feel bad for him that he’s still legally dead.
The judge should have ruled him alive as of the date of ruling, rather than nullifying the previous order. That way he would could be 36 again!
By TLG on 2013 10 11, 12:28 pm CDT
This seems like a good scenario to trump the SOL ‘in the interests of justice’.
By Young Solo on 2013 10 11, 12:38 pm CDT
When Social Security gets wind, THEY won’t think he’s dead—I can guarantee that.
By Can a Dead Person commit a crime? on 2013 10 11, 12:51 pm CDT
And what if this dead guy goes out and rob a bank - no conviction? Cool…
By Cj on 2013 10 11, 1:06 pm CDT
Poor guy is a non-citizen now? A non-entity? Persona non grata? Would this somehow fall under the prohibition of ex post facto laws?
One of you law-talking people help me out here, what’s the legal term for what they’ve done? And don’t we have a prohibition against that in some piece of paper, what’s it called, the Constitution?
Maybe he needs a new variation on a habeus corpus petition—“If I’m supposedly dead, show me the dead body”?
By K. on 2013 10 11, 1:15 pm CDT
Now there’s a thought. I’d argue that was the most interesting Habeus Corpus petition the US Supreme Court ever received.
By OKBankLaw on 2013 10 11, 1:20 pm CDT
Lack of notice arguments do not persuade some. However, service of notice through publication is weak in all jurisdictions. It is the most easily attacked, and the most easily overcome, especially for the purposes of a situation such as this.
But that doesn’t matter. Here, the notice by publication would be sufficient for third parties such as insurance companies, debtors, family members, and anyone else with an interest in the individual’s estate. (Although I would still try and get strong service.)
It would not be effective for the individual who was declared dead if that person returns, presents himself and proof of who he is, and petitions the court to change the ruling. See the above referenced case. Scott v McNeal 154 US 34 (1894), which addressees these issues.
If you focus too much on the technical here then you miss the fact that, despite what many believe, the law is rarely hypertechnical.
By John on 2013 10 11, 1:41 pm CDT
The deceased merely needs to move to another state where stupid is against public policy and his adjudication of death will not be full faith and credited. Let me check real quick and provide a list of such states…....Oh, sorry. Couldnt find any.
By Mike Russell on 2013 10 11, 2:17 pm CDT
That’s a heck of a long binge .... he’s been MIA for 27 years (declared dead the past 19) and just now figures out he needs or wants a social security number and license? No wonder his ex and kids don’t feel the need to reconnect.
By MimiMae on 2013 10 11, 2:28 pm CDT
This is an example of the “little widow woman rule” taught by Col. Gray in his Wills class at the University of Tennessee Law School in the early 1970’s. Col. Gray taught that if a ruling made no sense at all based on the law and the facts, we should look at the effect on the “little widow woman”. Judges will bend over backward to protect a “little widow woman.” In this case Judge Miller took it one step further by making certain that the “little widow woman” that the court had created by its earlier ruling was protected at the expense of logic, common sense and due process.
By Bob Dewey on 2013 10 11, 2:39 pm CDT
Per the article: “She has been receiving Social Security death benefits for her children.”
If Mr. Miller disappeared 27 years ago, and children only receive social security benefits until age 18, where did all these children currently receiving the benefits come from? Something doesn’t add up!
By William Able on 2013 10 11, 3:16 pm CDT
Brings to mind “Dead Man Walking”. Apparently, the Zombie Apocalypse has started, not with the petitioner but the judge.
By Mark on 2013 10 11, 3:24 pm CDT
Notwithstanding the apparent absurdity, it seems that he created a situation for himself. He disappeared, evidently voluntarily, without a trace. This might otherwise be fine, except here he had family to whom he owed obligations. The family, sought a determination of death, and in reliance upon the determination sought and received benefits. The government, in reliance, paid those benefits. Should the family now be placed in adverse position because of something he did? Should the tax payers have to foot the bill for his willful actions?
Something smells a bit fishy in this anyway. I only read the article above which is not exactly full of details He, an alcoholic, loses his job and completely disappears off the grid whereupon he is determined dead and his family collects benefits. Now he surfaces claiming to need a driver’s license and his social security card. Well, what exactly has he been doing to drive, or to work, or anything since he voluntarily disappeared? Why now? I note he is now 61 and may need to collect social security himself in a few years. I’m curious if he collected any disability, public aid or other benefits while he was missing.. uh… I mean “dead”. I’m also curious if the family was somehow aware. People may do strange things to feed their families.
By Pierce on 2013 10 11, 3:59 pm CDT
Gilbert and Sullivan should return from the dead to write a new play.
By Richard on 2013 10 11, 4:00 pm CDT
Wait a second here. Why in the world would an entirely innocent and unknowing third party—in this case, the man’s wife—have to reimburse Social Security for the benefits she received? IF any one must (a bit “if”), surely it would have to be the man himself. How could a ruling that he isn’t dead after all possibly have devastating ramifications on the person who was harmed the most by his actions—and this, directly at the hands of a federal agency?
What is going on here? I don’t understand. I thought equity was still part of the legal system, in both state and federal court.
If I’m wrong, please clue me in.
By Sonja on 2013 10 11, 4:10 pm CDT
The judge should dismiss-a dead man has no standing to sue
By Ben R. Hanchey on 2013 10 11, 4:23 pm CDT
People are allowed to walk away from their families, move to another state, and never contact them. It may not be nice, but it is legal. That said, however, People usually do owe child support in those circumstances. So there is validity in saying the social security administration may have an interest against the father akin to an interest the state’s social services agency would have - had they been making family welfare payments to the mother - while the father was not paying - Social services would have the right to get judgment against a deadbeat father. Because while the father did have the right to desert the family - he probably should have had a legal obligation to pay child support. Was that perhaps his purpose in remaining hidden/dead all these years. I think any discussion on his right to have the judgment declaring him dead set aside - should address his childrens’ rights to child support during the years of his dissertion.
By Jill on 2013 10 11, 4:58 pm CDT
@ Sonja (#108)—go back and read Kevin’s comment at #56.
Rather than the purported “widow” really worrying about having to pay back the money she received from Soc. Sec., I think Ham Solo at #67 has it right when he says she simply wants to KEEP getting her benefits.
As for everyone else who says “Wait a minute—the widow can’t STILL be collecting benefits for her now-adult children!”—good point, but the underlying UPI and Yahoo articles don’t actually say that. (True, the article here on this ABA Journal page unfortunately DOES say that, but that doesn’t match what the UPI and Yahoo articles themselves actually say, which is simply that the wife/mother originally applied for a judicial recognition of her husband’s death in order to get Social Security benefits for her and her children. Not that the kids are STILL receiving such benefits.)
By emjaycee on 2013 10 11, 6:43 pm CDT
The judge should have realized the man was not dead when he appeared without a seance, incantation or pentagram.
By B. McLeod on 2013 10 11, 6:56 pm CDT
Reminds me of the increasing number of cases in which advances in forensics have been used to prove the actual innocence of prisoners, including some on death row. Something is really wrong when our society permits the incarceration or worse of someone known to be innocent simply because the avenues for revisiting the convictions haven’t been created.
By Analogous to on 2013 10 11, 8:00 pm CDT
You would think that a judge who sees dead people would be able to create such avenues.
By B. McLeod on 2013 10 11, 10:27 pm CDT
Well, she made due without the SSA death benefits for the first 8 years, so, she was able to live without that money for a while.
@#36—no, he will still have to pay taxes on the business income after he was legally declared dead—See Internal Revenue Code provisions for Income in Respect to a Decedent
By Tax Lawyer on 2013 10 11, 11:27 pm CDT
Its absurd that things turned out that way. Unless there is contrary information to the “dead” man’s claim like; that he did what he did - to disappear, so tha his wife and children could survive by accessing his SSF savings whether he too benefited or not, then I do not legally see any reason for not having the ruling rescinded and he be declared alive.
However, neither his wife nor the SSF should be held liable and made to refund monies already accessed. So he can lawfully reinstated and have both his driving licence and SSF revived.
I advice his Attorney to seek leagl aid from established organs, if possible, the ABA or offer legal services pro bono and appeal against the Judge’s decision.
By Elijah Paul Rukidi-Mpuuga on 2013 10 12, 1:04 am CDT
Well, his wife has been receiving death benefits… If he reinstates his social security number and he’s 61 soon he’d be eligible for social security in his own right. I read in a different article that he wasn’t paying his child support and he had racked up a ton of debt. So now he’s been living debt free for years and he wants to come back into the system just in time to collect for himself!
By Bonnie on 2013 10 12, 5:59 am CDT
why not just kill him? you can’t be prosecuted….he’s already dead!
By Bruce on 2013 10 12, 9:04 am CDT
If your legally dead and you tell the judge their an idoit,could they find a dead man in contempt of court? If he is dead maybe he needs to get life ?
By Barry on 2013 10 12, 1:45 pm CDT
This story made the national news in the Print edition of the NYTimes today (Saturday Oct. 12).
The Times reports that the judge was pretty sympathetic, and fully recognized the idiocy of telling a man face-to-face that he was dead and there was nothing he could do about it. (He suggested getting the Legislature to change the law.) The article had other details too.
It’s embarrassing to be a lawyer sometimes. But the fault here wasn’t legal or judicial.
Legislatures may write laws that fail to contemplate what could possibly go wrong. Courts are more used to the concept of errors occurring and needing to be corrected by a higher court.
By Avon on 2013 10 12, 7:18 pm CDT
He should go on a crime spree. Can’t put a dead man in jail.
By Dan on 2013 10 12, 9:04 pm CDT
The judge dropped the ball on this one. Mr. Miller was presumed dead and court orders made under a legal presumption that obviously no longer applies if he now presents himself as still alive. Any SSA payments made to the wife as a result of the original orders remain valid because they were made on the basis of the facts as they existed at that time. The judge should have vacated the orders relating to the presumption of death from the date that Miller appeared in front of him and restored Miller to the living. As long as neither party did anything fraudulent to obtain the original orders, Mrs. Miller should not have to repay the SSA payments that she received during the period her husband was presumed dead. The judge should not have left Mr. Miller in a legal “no man’s land” because obviously he is no longer dead.
By Da Goobs on 2013 10 13, 12:18 am CDT
I think that for dramatc effect, when Miller appears again, he should add a puff of smoke, and perhaps some “Thriller” backup dancers.
By B. McLeod on 2013 10 13, 1:05 am CDT
And you just know the movie about this will be made by Rob Zombie.
By B. McLeod on 2013 10 13, 1:06 am CDT
“Yesterday, upon the stair,
I met a man who wasn’t there.
He wasn’t there again today.
Oh how I wish he’d go away!”
-William Hughes Mearns
Must be the same guy.
By Esquite on 2013 10 13, 11:42 am CDT
Let’s have some fun with this one. The “dead man” is broke, but he may attempt to rob a bank.
If successful he would most likely have enough $$$ to finance his lawsuit to prove he is not dead. If caught, the State would have to prove he is not dead because a “dead man” cannot be convicted of a crime.
By Victor D. Quilici on 2013 10 13, 2:14 pm CDT
Look. Just think of this as a resurrection I suppose.
I am sure someone can think of a solution.
By Lex on 2013 10 13, 2:23 pm CDT
If he is killed, is the person who committed the act not subject to a criminal or civil proceeding because the victim was dead befor the act?
By Tom Abinanti on 2013 10 13, 4:00 pm CDT
Victor, I doubt he would want to be caught dead robbing a bank.
By B. McLeod on 2013 10 13, 4:23 pm CDT
Hey, Da Goobs (122), the law doesn’t work that way!
First, a statute of limitations or “statute of repose” is designed to put such judgments out of the reach of anyone, including judges, regardless of the circumstances. That’s the only reason it even exists.
A three-year statute of repose that bars re-opening a decree of someone’s death may be unwise, but if it’s the law the judge was right to obey it - and also right to suggest (as the article says) a new statute to reverse the existing one. And, any such new statute can’t Constitutionally take away anyone else’s rights, although I don’t think the wife has a right to keep money she shouldn’t have got.
Second, the law is clear that no one has a right to keep erroneously-paid benefits. The wife couldn’t be penalized, but you (and she) are correct that it’s hardship enough to have to repay money that she needed, and spent, so she and her children could live.
The same dilemma recently arose here in NYC, where some innocent investors in two infamous, enormous Ponzi schemes - those who happened to have withdrawn their profit before the scheme collapsed - have been successfully sued by the bankrupt crook’s victims to “claw back” those withdrawals. (At least those lawsuits have clarified the issue of what claw-back limits there are.)
Life is tough, and unfair, when there’s not enough to go around - and it’s bound to be even worse when someone makes a mistake.
By Avon on 2013 10 13, 7:32 pm CDT
@111, emjaycee, thank you! I appreciate it! Of course I didn’t see those comments before writing.
I knew that what the article claimed to be the “widow’s” position couldn’t be right, but I didn’t know why. If she is continuing to collect benefits in reliance on the judge’s ruling, I wonder whether she may have to pay those benefits back.
You would sort-of expect an ABA article to mention some of this stuff, but I guess that now we are the product. :)
By Sonja on 2013 10 13, 9:49 pm CDT
The statute of limitations and the statute of repose would apply to JUDGMENTS the “widow” obtained in legal proceedings. Those will not be reopened. They don’t bar a living person from proving they are alive, and proving they are who they claim they are. At most, they operate so that the “widow” would be entitled to all the benefits that may be due her because she is a widow, and that no one can go back and change those benefits between the time that judgment was rendered and until her husband can legally demonstrate he is not dead.
If this sounds convoluted, remember that he could be a poseur. Everyone can see he is not dead. The issue is his true, legal identity, not whether he is alive and kicking. Innocent third parties are protected from the fallout of his scheme. He can’t victimize them twice.
The Ponzi case you cite is different. The innocent third parties in that case could not lose their principal. The most they would have to do is give back some of the gains that were fraudulent. And notice that they had to be sued for the claw back. It was not automatic, and the government was not the plaintiff.
They could have ended up winning, or settling. (If you come back and tell me they were on the hook for principal, please prove it.) My guess would be they could keep both principal plus the equivalent of short-term T-bond interest for that period, as a minimum. Also, if the government gets restitution from the perpetrator, they should be in line for some of those proceeds, though they may be extremely small.
By Sonja on 2013 10 13, 10:21 pm CDT
Does a Legal Fiction x Legal Fiction - cancel one another out? PLEASE NOTE: I was a History major and English minor for a reason.
What is that old saying though “the law does not abide an absurdity.” Well, maybe that is an paraphrase but I hope I made my point.
By Two to Beam Up on 2013 10 14, 12:10 pm CDT
The “legal fiction x legal fiction” idea gave me an idea. The first guy is dead, and the Judge didn’t feel he could undo that. But I wonder if he could order the County to issue him a birth certificate?
Donald Eugene Miller Jr died in 1994, so the guy presenting himself in court, who is clearly alive, must be Donald Eugene Miller III. Although, that wouldn’t give him access to his own Social Security, so I guess that’s not a good solution either.
By K. on 2013 10 14, 12:35 pm CDT
Now he is truly “undocumeted,” so the best move would be to go to California, where they will give him a law license and anything else he wants.
By B. McLeod on 2013 10 14, 12:38 pm CDT
“Miller’s former wife, Robin Miller, opposed Miller’s attempt to reverse the ruling. She has been receiving Social Security death benefits for her children and she says she can’t afford to repay the money.” HAHA What? Umm…your honor, in support of my motion for judgment notwithstanding the verdict, I argue that I cannot afford to pay the judgment against me. Like the movie Liar Liar where Jim Carrey objects to the testimony on the basis that it would be detrimental to his case. At least she’s honest about her intentions however. What’s her argument though? “Your honor despite the fact that he’s standing before you don’t be fooled…he’s a ghost! Trust me!”
By SME on 2013 10 14, 12:48 pm CDT
31—> He has good evidence. He can take the stand and testify as to his own existence.
By SME on 2013 10 14, 12:51 pm CDT
His attorney’s name is MARLEY?
Wasn’t he junior partner?
But seriously, if he’s worried about a drivers license he ought to just get in a car and drive 80 mph down main street, and let the cops pull him over and go nuts trying to figure out how to write him a ticket. It’s a story worthy of Sheikh Nasruddin.
By John B. on 2013 10 14, 2:08 pm CDT
The obvious career path for this individual is to run for Congress. Or, since he lives in Ohio, he could be a plumber.
By ABA Journal As A Second Language on 2013 10 15, 11:38 am CDT
So if this guy gets shot, stabbed or beaten, (and quits breathing), is it murder?
By Johnny E on 2013 10 15, 1:12 pm CDT
And this is why there should be exceptions to statutes of limitations.
By Scales on 2013 10 15, 1:56 pm CDT
132 Sonja -
If there’s a statute that says you can’t litigate something after three years have passed, I call it a “statute of limitations or a statute of repose.” (I didn’t presume to judge which). I don’t see where the statute says that it applies only if the claimant is a widow rather than the (non)-decedent or any other interested party such as the county welfare department. (I think it’s an ironically unfair effect of the Supremacy Clause that the Feds are presumably not barred by the state statute in recovering, but everyone else is.)
The clawback in the Bernie Madoff case was because the bankrupt villain’s estate can be deemed to have made a “fraudlent transfer” to the investors who withdrew. Whether they had withdrawn principal, interest, or even just gifts is irrelevant. Yes, it’s harsh, but bankruptcies are harsh on anyone who “got out” too late.
For the purposes of determining what should be deemed to be in the bankruptcy estate, the time frame of the withdrawals prior to the bankruptcy is determinative, given that its insolvency was no great surprise to the debtor. Even if a bankrupt generates no profits at all, and nobody got anything back but their principal, the law disfavors a “run on the bank” where the only creditors who get what’s theirs are the hair-trigger creditors.
Whether anyone who withdrew within the clawback time period gets to keep their principal depends entirely on how much all the creditors are owed, and how much was either on hand at bankruptcy or recovered by the Trustee by clawback, receivables, confiscation from the villain or his family, or otherwise. If additional interests of justice will affect the outcome, it’s only because the negotiation and/or litigation of the bankruptcy Plan has determined that they will be taken into account.
By Avon on 2013 10 15, 2:15 pm CDT
“I really think this was more about the wife’s desire to CONTINUE being paid, i.e., receiving Miller’s retirement benefits as if she were still his widow.” Assuming that this is the case, then I think the widow should be charged with attempted fraud by even attempting to make that argument.
By SME on 2013 10 15, 4:53 pm CDT
Hear hear (or “oyez, oyez,” depending on your jurisdiction), SME @143. First sensible comment on here (including my own, which were flippant, but excluding the really long ones because I just skip over those. Ain’t nobody got time for that!)
I agree with you, even arguing that the poor guy’s status should remain “dead” when he is clearly alive is attempting some kind of fraud, in my opinion. As well as ample grounds to divorce the “widow,” as well, since that will likely become necessary once he’s regained his “alive” status.
A criminal defense attorney by trade, the “widow’s” shenanigans don’t sound too dissimilar to some welfare fraud cases I’ve seen prosecuted. To keep receiving a benefit when you’re no longer entitled to it, that’s fraud.
By K. on 2013 10 15, 5:42 pm CDT
How can someone be considered legally dead without a body? I understand that within an investigation the first 48 hours are the most crucial in an investigation, after that point the likelihood of finding someone alive greatly dissipates, however, without a body is there technically a death? What ruled this man as dead? Was there a suicide note, and yet no body? But in that case, if someone was to have written a letter and jumped off a bridge and the body was never recovered I guess that person could technically be considered never dead.
I feel that a person should not be declared dead until the average life expectancy has passed. Granted that would leave many open cold case files, but with no body there can be no conclusion, thus preventing situations like this. If there is death proven with evidence and facts (DNA, crime scene investigation, etc) Then perhaps there can be an exception. After all every rule has an exception, even that one.
Every living being is granted an identity. Perhaps not give him his old one back (after all that would mean he maintains the credit score, benefits, etc) and perhaps start him a new, new social security number etc. The ex wife should be held accountable for the debt paid to her, and if she is still persistent that she cannot afford to pay it back, then she should do as anyone should, and pursue a legal judgement against him. Perhaps they could garnish his income and that would “ease her suffering.”
By Christine on 2013 10 16, 8:40 am CDT
Well like someone else pointed out previously, she was not committing fraud for the benefits previously paid since she didn’t do anything wrong. After all, fellow was declared legally dead and there is no evidence that she had any role in procuring his disappearance for fraudulent purposes. My issue is about her attempts to continue receiving the benefits by asserting that he is still dead when this assertion has no factual basis. There may be other legal avenues for continuing benefits however.
By SME on 2013 10 16, 8:47 am CDT
Agreed, once she was made aware of his living state, if she truly had a fear of being made to repay back the money you’d think she’d withdraw her claim. Thus removing any possibility of being liable. However her continuing to receive these benefits should constitute as fraud. It would be much like receiving Public Assistance of any kind after your circumstances have changed. Hold her liable for the balance after his state was known, make him pay back the difference from his “death”.
By Christine on 2013 10 16, 9:01 am CDT
Yes, I agree. I’m not without sympathy however. For all the years he was “dead” she was without a supporting spouse and depended on the benefits. If she didn’t work because of having to take care of children or whatever then she didn’t advance a career and didn’t save any retirement benefits (in the form of a 401K or some such thing). Kind of like the theory behind alimony in the “old days”. Maybe there should be some sort of equitable remedy where the benefits could continue until a reasonable time in which the dead man can get back to work and start providing some support or she can rearrange her affairs and find a job or other public benefits (welfare). I agree that the dead man should indeed be liable for the pre-life discovery benefits.
By SME on 2013 10 16, 9:12 am CDT
A corporation is an artificial person created by law and given its own personality. It has its own tax identification number, can earn income, make investments, can be charged for breaching the law, can sue and be sued but unfortunately, is not allowed to have a driver’s license. This ‘dead’ man could be incorporated and given a new ‘artificial’ life as a corporation. He does not really need a driver’s license to survive and when he ‘dies’ again, the corporation will just simply be wound up.
By LLM on 2013 10 16, 10:03 am CDT
If James Bond novelist Ian Fleming was alive, he would probably say: “” Live and let die.”
By charlegman on 2013 10 16, 4:02 pm CDT
WELL, let’s look on the Brightside.
This legally dead stuff is NOT a pre-existing condition under Obamacare! In fact, he may be considered a model insured - once the website is fixed.
Since the shutdown is over though, they may have time to get the Web Site fixed.
By Two to Beam Up on 2013 10 16, 4:09 pm CDT
I understand the ruling and many of the comments above, but why not just apply for a new identity?
Wouldn’t that be easier?
Ilegal Aliens do it every day in the USA.
By ANONYMOUS on 2013 10 16, 4:38 pm CDT
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