When the Dead Are Very Much Alive

For the Ohio judge handling the case, the situation may have been bizarre, but the law was clear.

“I don’t know where that leaves you, but you’re still deceased as far as the law is concerned,” Hancock County Probate Court Judge Allan Davis told Donald Miller Jr. earlier this week.

As we reported in Tuesday’s edition, Miller went to court on Monday to ask a county judge to reverse a 1994 ruling that declared him legally dead after he had vanished from his home eight years earlier. But the judge turned down his request.

It seems that Miller had missed his chance to return to the land of the living. There is a three-year time limit for changing a death ruling, and he had missed his deadline by some 16 years.

Since in the eyes of the law Miller is actually dead, he can’t get a driver’s license, nor is his Social Security number usable by someone who is actually alive.

Miller is hardly innocent in this saga. He disappeared in 1986 after losing his job and drinking far too much. Even after returning to Ohio in 2005, Miller waited nearly a decade before going to court to try to change his legal status.

His former wife had her own reasons for objecting to Miller’s quest. She says she doesn’t have the money to repay the Social Security benefits that were paid out to her and the couple’s two children after Miller was declared dead.

The scenario is certainly a rare one. Francis Marley, the attorney who represented Miller in the case, told the media that in his 43 years of practicing law he hasn’t come across such a case.

But it isn’t unique. More than 60,000 Americans have been declared “legally dead,” yet an unknown number of them are actually very much alive.

John Burney was a respected member of the Helena, Arkansas, community, and was married with two children when he disappeared in January 1976 after being involved in a truck accident on the Mississippi River Bridge. Burney’s business had collapsed due to mismanagement, and at the time of his disappearance he was facing lawsuits and even a death threat from individuals who were blaming him for their financial losses.

The river was dragged and searched and no body was found. However, a body was sighted downriver by two fishermen about two weeks later but was not recovered. The Arkansas state police officer who investigated the case advised Burney’s wife that in his opinion John was dead, and a private investigator came to the same conclusion.

The family held a memorial service and placed a gravestone in the cemetery in his memory. His wife filed for his life insurance policy, and while the insurer initially resisted, they eventually reached a settlement, and she collected some $90,000. Six years later, he shocked his wife, children and parents by resurfacing. It turns out that he had been alive and well the entire time, living under an assumed name.

The case of Donald Miller has prompted calls in some quarters for the Ohio legislature to tinker with existing laws and allow someone who has been declared dead but is alive to reclaim his place in society. That would be a logical and reasonable step.

But these cases also question the validity of the entire concept of “legally dead” statutes. The precise details vary from state to state; in some states four years of unexplained absence without any contact suffice, in others an absence of seven years is necessary for such a declaration.

From a halachic perspective, simply disappearing without a trace is never sufficient for someone to be declared dead. In absence of a body, clear and compelling evidence is needed.

The plight of family members whose relative has vanished is extraordinarily heartbreaking, and so the emotions behind the writing of these statutes can be readily understood. Finding someone legally dead makes it possible for “survivors” to access the estate and receive Social Security benefits and insurance policies. But that still doesn’t make it right.

The current laws setting down para-meters for the legally dead lay out a welcome mat for fraud and abuse. They lead some women to remarry, thinking they are widows — only to discover that their husbands are very much alive. They encourage family members to collect funds to which they may not be entitled.

Whether Donald Miller really deserves a second chance after his deplorable conduct is debatable, but he certainly shouldn’t be considered dead when he is not.

This article appeared in print on page 10 of the October 17th, 2013 edition of Hamodia.