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December 2013 - Death Benefits

by Richard W. Millar, Jr.

Unless it is in the context of estate planning, probate, or taxes, death is not usually the subject of a lawyer magazine article. Yet, when you think about it, there is an extraordinary body, if you will excuse the unintended pun, of law which comes into play when a death occurs.

And, then there is the funeral industry where people, in ironic contradiction, make a living off death.

The world’s religions posit, in their own ways, life after death. No one has ever been able to challenge these beliefs because no one has ever returned from death and given us the benefit of that experience.

That is, of course, until now.

Well, sort of.

The legally late Donald E. Miller, Jr. lived in Arcadia, Ohio. (This delicious fact gives me an opportunity to pimp my brother who lives in Ohio, but I digress.) He was married to Robin Miller with whom he had two daughters. A self-described alcoholic, he lost his job and sometime around 1986 he up and disappeared, leaving thousands of dollars in unpaid child support behind.

In 1994, Mrs. Miller petitioned the Hancock County Probate Court to have him declared legally dead so that she could collect Social Security benefits for their two daughters. Judge Allan H. Davis signed the order.

Time, as it is wont to do, went by, and the widow Robin Miller remarried. To someone whose last name was also Miller. (That had the side benefit of saving a lot of paperwork, but, again, I digress.)

As you might suspect, inasmuch as this is one of my columns, the story does not end with Mrs. (Double) Miller forever and ever living an uneventful life.

In 2013, a petition was filed in the same Hancock County Court before the same Allan H. Davis to overturn the 1994 ruling. The petitioner and chief witness was none other than the late Donald E. Miller, Jr. The late and former Mr. Miller, it seems, had worked odd jobs in Atlanta, Georgia and Marathon, Florida, stating that things went further than he had expected and he just wandered off to different places. The legally deceased, but now living, 61-year-old filed the petition because he wanted to apply for a driver’s license and reactivate his Social Security number. (I guess even Ohio does not issue driver’s licenses to dead people because it would be embarrassing if they passed the written test.)

Robin Miller opposed the petition. Her argument, which in my myopic view was not entirely on point, was that if he was declared alive, she would have to repay all the Social Security benefits she had received and, although she was a nurse, she was unable to work because of a disability and could not afford such an obligation.

At this juncture, I have to insert a question that apparently was not an issue in the proceedings: Did Mrs. Miller, either as Mrs. Donald Miller or as Mrs. New-Husband Miller, have standing to argue that someone who was obviously alive and well was neither? On the flip side, did the legally dead Mr. Miller have the legal capacity to argue that he was, in fact, alive? As far as I know, the only time a dead person has capacity to sue is when his first two names are “Estate of.”

Well, absent an appeal, we will never know, for the judge ruled the statute of limitations had run.

Let me re-emphasize and recast that: In Ohio, if you are ruled dead, you have three years within which to be ruled alive. As Mr. Miller, who was obviously alive, had been fictionally dead for more than three years, he was, as they say in the vernacular, “SOL.”

That’s right. The judge, with Mr. Miller standing in front of him, ruled that he was still dead.

I am not sure where that leaves everyone. I would guess it means that Mrs. Miller-Miller can still collect the first Mr. Miller’s Social Security and he can neither get his Social Security nor drive.

All is not lost for him, though,

He could still move to Chicago and vote.

Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at

Orange County Bar Association | P.O. Box 6130 | Newport Beach, CA 92658 | 949.440.6700 |
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