What is deceased person identity theft

| by Max Soni

What is deceased person identity theft?

Thanks for visiting Spodek Law Group. We’re a second-generation law firm managed by Todd Spodek – with over 40 years of combined experience handling federal criminal defense cases. We’ve represented clients in high-profile matters like the Anna Delvey case that became a Netflix series, the Ghislaine Maxwell juror misconduct case, and many, many, other federal prosecutions. If you’re reading this, you probably need to understand deceased person identity theft – either because you’re facing charges or because someone you know is under federal investigation.

Deceased person identity theft is exactly what it sounds like, criminals steal the identities of dead people to commit fraud. The federal government calls this “ghosting.” Prosecutors take these cases seriously because the schemes often involve tax fraud, passport applications, Social Security benefits theft, and credit card fraud. In 2025, the Department of Justice is actively prosecuting these cases under 18 U.S.C. § 1028 and § 1028A – with penalties reaching 15 years in federal prison, plus mandatory consecutive sentences.

The scale of the problem is massive

Approximately 2.5 million deceased individuals fall victim to identity theft annually. That’s not a typo. Of those, around 800,000 are specifically targeted for credit fraud – opening new lines of credit, applying for loans, getting cell phone plans. Fraudsters steal identities from obituaries, funeral home records, hospital databases, and stolen death certificates. Sometimes they hack into government systems to access death records directly.

Why target the dead? They don’t monitor their credit reports, they don’t check bank statements, they don’t call the police. Family members often don’t discover the fraud for months or years – sometimes not until the estate tries to close accounts or the IRS flags suspicious tax returns. The window of opportunity is huge, especially if the death isn’t widely publicized.

One case from Massachusetts in 2024 shows how federal prosecutors handle these charges. A Vietnamese national used a deceased person’s identity for over five years – applying for a U.S. passport at a Weymouth post office, providing the victim’s date of birth and Social Security number. He was arrested in May 2024, indicted by a federal grand jury in September 2024, and faces sentencing in June 2025. That’s passport fraud plus aggravated identity theft, which means a mandatory two-year sentence that runs consecutive to whatever else the judge imposes.

Federal charges you need to understand

Using a dead person’s identity violates 18 U.S.C. § 1028 – fraud and related activity in connection with identification documents. The base offense carries up to 15 years imprisonment. If you used that stolen identity to commit another felony, prosecutors add 18 U.S.C. § 1028A – aggravated identity theft – which is a mandatory minimum two years in federal prison that must run consecutively to any other sentence.

Consecutively means stacked on top. If you get five years for the underlying fraud and two years for aggravated identity theft, you’re serving seven years minimum. The judge has no discretion on that two-year add-on, it’s mandatory under the Identity Theft Penalty Enhancement Act of 2004.

Federal prosecutors often charge multiple counts. Using one deceased person’s Social Security number to file a fraudulent tax return? That’s identity theft. Using the same identity to open a bank account? Another count. Applying for a credit card? Another count. Each count can carry its own penalty – though judges typically run some of them concurrent. The government stacks charges to create leverage for plea negotiations.

Common schemes that trigger prosecution

Tax refund fraud is probably the most common. Criminals file fraudulent tax returns using deceased individuals’ Social Security numbers, claim fake refunds, and direct payments to prepaid debit cards or bank accounts they control. The IRS estimates fraudsters steal identities from around 800,000 deceased Americans every year for tax schemes alone. When the government catches you, they charge tax fraud plus identity theft – two separate federal offenses with separate penalties.

Credit card applications are next. Apply for credit using a dead person’s name, Social Security number, and former address – then max out the cards before creditors realize the applicant is deceased. Some fraudsters are sophisticated, they change the mailing address to intercept bills and delay discovery. Others just grab what they can quickly.

Social Security benefits theft happens when someone continues collecting a deceased person’s monthly payments. Sometimes it’s a family member who doesn’t report the death because they need the income, sometimes it’s an outsider who intercepts checks. Either way, it’s federal fraud – and when investigators trace it back to you, you’re facing charges for theft of government funds on top of identity theft.

Passport fraud is particularly serious because it involves national security concerns. The case from Massachusetts involved a foreign national obtaining a U.S. passport with a deceased citizen’s identity. The Department of State’s Diplomatic Security Service investigates these cases aggressively, and prosecutors pursue maximum penalties because passport fraud can facilitate terrorism, illegal immigration, and other serious crimes.

What the government must prove

To convict you of identity theft under § 1028, prosecutors must prove you knowingly transferred or used, without lawful authority, a means of identification of another person with intent to commit unlawful activity. Three elements matter: knowledge, lack of authority, and intent.

Knowledge means you knew the identity belonged to someone else. Mistake of fact can be a defense – if you genuinely believed you had permission to use the information, that undermines the knowledge element. It’s rare, but it happens. Maybe you legitimately bought a car from someone and used their documents thinking they authorized it. The government must prove you knew you were stealing someone’s identity.

Lack of lawful authority is straightforward when the person is deceased. You can’t get permission from a dead person. But what if you’re the executor of an estate and you accessed the deceased’s accounts for legitimate estate administration? That’s lawful authority. The line gets blurry when family members use a deceased relative’s information – sometimes it’s innocent estate management, sometimes it’s theft. Prosecutors look at intent.

Intent to commit unlawful activity is the critical element. If you used a deceased person’s Social Security number just to access old medical records for the estate, that’s probably not criminal – you’re not intending to defraud anyone. If you used it to open a credit card and rack up charges, that’s clear intent to commit fraud. If you filed a tax return in their name to claim a refund you weren’t entitled to, same thing – intent to defraud the government.

Why you need experienced federal defense counsel

At Spodek Law Group – we’ve handled federal identity theft cases involving everything from healthcare fraud to financial crimes. Our managing partner, Todd Spodek, is a second-generation criminal defense attorney who’s represented clients in some of the most challenging federal prosecutions. When the government charges you with deceased person identity theft, they’ve already built their case – they’ve got financial records, transaction histories, surveillance footage, cooperating witnesses.

Former federal prosecutors are on our team. We understand how DOJ prosecutors think, we know the federal sentencing guidelines inside and out, we’ve negotiated plea agreements that avoid mandatory minimums through substantial assistance provisions and safety valve relief. We’ve won cases others said were unwinnable because we find the weaknesses in the government’s case that other lawyers miss.

Federal sentencing for identity theft isn’t just about the statute – it’s about your criminal history category, offense level adjustments, acceptance of responsibility reductions, departures and variances. A judge can sentence below the guidelines if we present compelling mitigation. But you need someone who knows how to challenge the loss amount calculations, dispute victim counts, argue against enhancements. That takes experience with federal sentencing, not just general criminal defense experience.

If you’re under investigation or facing charges for deceased person identity theft, don’t wait. The government is building its case right now. Call us 24/7 – we’re available coast-to-coast, and we’ll walk you through exactly what you’re facing and what defenses might work in your situation. We only take cases where we believe we can make a real difference in the outcome. If we’re working with you, it’s because we think we can help.