“Legal Zombies” walk among us

An Ohio man discovers that being once “dead” can make life difficult.

There is a dead man living in Fostoria, Ohio.  This small town forty miles south of Toledo is not the home of a bloodthirsty vampire, vengeful ghost, or brain eating zombie.   Instead, Fostoria is home to “legal zombie” Donald Eugene Miller, Jr., a sixty-one-year-old man in good health who was declared legally dead in 1994.

In the United States, it is not entirely unusual for someone to go missing without any explanation or indication of foul play.

The concept of having a missing person declared dead by a court originated in the common law (pdf), with the first reference in English legal literature appearing in The Statute of Bigamy of 1604.  Having an individual declared legally dead allows various legal issues related to the missing individual to be addressed.  Such issues include the distribution of the decedent’s property and proceeds from his or her life insurance policies and pensions, the establishment of means of providing for the decedent’s dependents, the resolution of the marital status of the decedent’s spouse (thus allowing him or her to remarry), the removal of the requirement that the decedent consent to certain legal transactions, the creation of clear title to any real estate owned by the decedent, and the dissolution of any claims of inheritance that the decedent may have had.

In the United States, it is not entirely unusual for someone to go missing without any explanation or indication of foul play.  Around the time Mr. Miller went missing, the Federal Bureau of Investigation had on-file 60,000 reported cases of “regular Americans […] absent without logical explanation.”  During the same time period, the head of a private missing persons bureau in New Jersey estimated that the actual figure was closer to 100,000.

In some states, no length of time is sufficient to create a presumption of death; the issue must instead be decided by the court based upon the available evidence.

Historically, a missing person would have to have been absent from his or her home continuously for seven years, without any contact between the decedent and the person seeking a decree of presumed death, before he or she could be declared dead.  A five-year requirement has become more popular in the modern era.  In some states, such as North Carolina (pdf) and Maryland, no length of time is sufficient to create a presumption of death; the issue must instead be decided by the court based upon the available evidence.

The rules governing the process of having someone declared dead in the state of Ohio are found in Chapter 2121 of the Ohio Revised Code, also known as the Presumed Decedents’ Law.  Under the law, a person is presumed dead when he or she “has disappeared and been continuously absent from the person’s place of last domicile for a five-year period without being heard from during the period.”

Once a person meets the requirements for a presumption of death in Ohio, anyone who has “any property, right, or interest by reason of the death of the presumed decedent” can file a complaint with the probate court where the decedent was last domiciled.  The probate court then will examine the evidence and ascertain whether the presumption of death is established.  If the evidence is sufficient to establish the presumption of death, the judge will issue a decree of presumed death and the decedent’s estate will be probated.

In Ohio, the decree of presumed death can be vacated only if the court is provided satisfactory evidence that the decedent is alive within three years of the issuance of the decree.  The time for appeal in Ohio is comparatively short.  In North Carolina and Maryland, the decedent has five years to appeal the decree, while citizens of Tennessee who are presumed dead have seven years to challenge the decision.

In reality, Mr. Miller has spent the last twenty-seven years very much alive.

The story of Mr. Miller’s “death” began in 1986, when he disappeared from his trailer home in Arcadia, Ohio.  Eight years later, his ex-wife, Robin Miller, petitioned the Hancock County Probate Court to have him declared legally dead so that she could receive Social Security death benefits for herself and the two children she shared with Mr. Miller.  Judge Allan Davis found that sufficient evidence existed to grant Mrs. Miller’s request, and, as far as the state of Ohio and the Social Security Administration are concerned, Mr. Miller has been dead ever since.

In reality, Mr. Miller has spent the last twenty-seven years very much alive.  After leaving Ohio around 1990, Mr. Miller worked odd jobs in Atlanta, Georgia and Marathon, Florida.  In 2005, he returned home to Ohio where his parents informed him of his “death.”  On October 7, 2013, Mr. Miller was in court asking the same judge who had declared him dead to give him back “whatever’s left” of his life.

When Mr. Miller disappeared, he was an alcoholic who had recently lost his job.  Unsure of what to do, he left home without telling anyone where he was going and without contacting his family after he left.  After the October 7 court hearing, Mrs. Miller claimed that her ex-husband had fled because he was afraid that he would go to jail for unpaid child support.  At the time of the 1994 decree, Mr. Miller owed approximately $26,000 in overdue child support.

Though she bears no ill will towards her ex-husband and would like to see him get his life back on track, Mrs. Miller was in court to oppose her husband’s request to vacate the decree.  Mrs. Miller’s attorney, James Hammer, stated that his client might be responsible for paying back the Social Security death benefits she and her children received if the decree is vacated.  Mrs. Miller does not have the financial resources available to repay the thousands of dollars of benefits she received.

Without resources to fund an appeal, Miller will remain “deceased as far as the law is concerned.”

As Mr. Miller has discovered, being dead can make life very difficult.  As a result of the decree establishing his death, the Social Security Administration cancelled his Social Security number.  Without a Social Security number, Mr. Miller is prohibited from participating in many activities, including collecting Social Security benefits, engaging in legal employment and certain monetary transactions with banks, submitting required IRS tax forms, and acquiring a driver’s license in Ohio and many other states.

Judge Davis took notice of the unusual nature of Mr. Miller’s predicament in court, calling it a “strange, strange situation.”  He told CNN that, “In over 40 years, I’ve never come across a case like this.”  Unfortunately for Mr. Miller, the judge found that the law was clear on the issue: the previous ruling could not be overturned because of the three-year statutory limit on appealing such decisions.

Mr. Miller’s prospects are bleak moving forward.  He has thirty days to appeal the decision to Ohio Third District Court of Appeals.  His attorney, Francis Marley, has indicated that Mr. Miller might instead take the case to the United States District Court for the Northern District of Ohio and challenge the Social Security Administration directly.  He added, however, that his client currently does not have the financial resources necessary to do so.  Until Mr. Miller can get enough money together, he will remain, in the words of Judge Davis, “deceased as far as the law is concerned.”


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About Katherine Doering Custis, Editor-in-Chief Emeritus (19 Articles)
Katherine Doering Custis served as the Editor-in-Chief of the Campbell Law Observer during the 2014-2015 school year. Katherine holds a Bachelor of Arts in Political Science and a Master of Public Administration from North Carolina State University. She has worked with the North Carolina National Guard, Office of the Staff Judge Advocate; North Carolina Administrative Office of the Courts, Research and Planning Division; City of Raleigh, City Attorney's Office; North Carolina General Assembly, Research Division, and Hon. James C. Hudson, Supervising Judge of Suffolk County (NY) Court. She is a native of Southold, NY and now resides in Knightdale, NC. Katherine graduated from Campbell Law School in May 2015.
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