TN 27 (12-00)

GN 00306.020 Presumption of Legitimacy

A. Policy — General

1. General Rule

State laws presume that a child born in wedlock is the natural legitimate child of the mother's husband. If the mother's marriage ended before the child's birth, State laws generally presume that the child is the natural legitimate child of her husband at the time of conception.

The rules concerning the presumption of legitimacy and the evidence necessary to rebut it vary from State to State. See GN 00306.001 for which State law to apply.

If the child was conceived during one marriage and born during a later one, and you have no precedent opinion, submit the question to the RCC under GN 01010.815 ff., unless the child can qualify as a stepchild.

2. Entitlement Under Section 216(h)(3)

A child may qualify as the NH's child under section 216(h)(3) of the Social Security Act even if State law presumes that he/she is the legitimate child of another person. See GN 00306.100 ff.

3. Entitlement as Stepchild

If the presumption of legitimacy does not apply and the child was conceived before the marriage, the child may qualify as the NH's stepchild.

B. Policy — When to Question Status of Child

Question the natural legitimate status of a child born during wedlock only in the following situations:

1. Question Raised about Paternity

An adverse claimant or the NH's relative raises the question of the child's paternity, or evidence casts doubt on his/her natural legitimate status. When this occurs, obtain the type of evidence described in GN 00306.021C. A contesting claimant must submit evidence to support allegations.

CAUTION: In some States, only the testimony of the child's mother and legal husband are acceptable in disputing the presumption. See GN 00306.025.

2. Mother or Legal Husband Volunteers Information

The child's mother or her legal husband volunteers information that raises doubt about the child's legitimacy. The acceptability of such statements depends on whether the State applies the Lord Mansfield Rule (GN 00306.025 - GN 00306.026).

3. NH Not Shown as Father on BC

The space for the father's name on the child's BC is left blank or shows the name of a man other than the NH (the mother's legal husband).

4. NH Not the Mother's Legal Husband

The child's claim is based on the E/R of a man other than the man who was the mother's legal husband when the child was conceived or born. The child cannot be entitled as the NH's child based on State law unless:

  1. The presumption that the child is the legitimate child of the man who was the mother's legal husband is overcome;

  2. The child has inheritance rights with respect to the NH under applicable State law (GN 00306.400 - GN 00306.680); and

  3. The evidence establishes that the NH is the child's biological father.

EXCEPTION: See GN 00306.021B.1. for exception in Louisiana.

NOTE: Consider the possibility of entitlement under section 216(h)(3) of the Act (GN 00306.100).

5. Child Born More Than 287 Days After Death or Divorce

The child was born more than 287 days after the death of the mother's husband or her divorce from him. In these situations, develop the issue and submit the case to the RCC per GN 01010.815 ff. in the absence of a precedent opinion.

REFERENCE: See SSR 73-28.

6. Tennessee Law Applies

The law of Tennessee applies and the child was conceived after the parents began divorce proceedings, went through with the proceedings in apparent good faith, and were divorced. Submit to the RCC per GN 01010.815 ff.

7. Louisiana Divorce from Bed and Board

In Louisiana, the child was conceived after a divorce from bed and board. Submit to the RCC under GN 01010.815 ff.