TN 3 (10-08)

PR 01005.012 Georgia

A. PR 08-188 Status of Child Born After Number Holder's Death - Georgia

DATE: September 18, 2008

1. SYLLABUS

For purposes of intestacy, Georgia law states that: "[c]hildren of the decedent who are born after the decedent's death are considered children in being at the decedent's death, provided they were conceived prior to the decedent's death, were born within ten months of the decedent's death, and survived 120 hours or more after birth." In this case, a child born 303 days after the Number Holder's death to his widow would be considered a child of that number holder for intestacy purposes since there is no conflicting evidence to rebut the presumption of legitimacy.

2. OPINION

QUESTION

You asked whether the claimant can qualify for child's insurance benefits as the child of the number holder where the claimant was born approximately ten months after the number holder's death.

OPINION

For the reasons set forth below, we believe a Social Security Administration (SSA) adjudicator could determine the claimant is the child of the number holder for purposes of child's insurance benefits.

BACKGROUND

According to the information made available to us, Randal M~, the number holder (NH), married Olivia W~ (Wife) on July 13, 2007. On July 18, 2007, NH died while domiciled in Georgia. Rayna N. B~ M~ (Claimant) was born on May 16, 2008, 303 days after NH's death. Wife filed an application on Claimant's behalf for child's insurance benefits on July 9, 2008. Claimant's birth certificate lists NH as the father.

DISCUSSION

To qualify for child's insurance benefits on the record of an individual who dies a fully or currently insured individual, a claimant must be that individual's "child." See Social Security Act (Act) § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1) (2008). A "child" for purposes of section 202(d)(1) of the Act includes an individual who is the insured individual's natural child. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2008).

A claimant can qualify as the insured person's natural child if, among other methods, the claimant could inherit the insured person's personal property as his or her child under the intestacy laws of the state where the insured has his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b) (2008). Because NH was domiciled in Georgia when he died, we look to Georgia law.

For purposes of intestacy, Georgia law states that: "[c]hildren of the decedent who are born after the decedent's death are considered children in being at the decedent's death, provided they were conceived prior to the decedent's death, were born within ten months of the decedent's death, and survived 120 hours or more after birth." GA. CODE ANN. § 53-2-1(a)(1) (2008). Georgia law also provides that all children born in wedlock or within the usual period of gestation thereafter are legitimate. See GA. CODE ANN. § 19-7-20(a) (2008). The legitimacy of a child born in wedlock may be disputed, but where the possibility of access exists, the strong presumption is in favor of legitimacy and proof must be clear to establish the contrary. See GA. CODE ANN. § 19-7-20(b) (2008). The public policy favoring the presumption of a child's legitimacy is one of the most firmly-established and persuasive precepts known in the law, disputed only by clear and convincing evidence. Baker v. Baker, 582 S.E.2d 102, 103 (Ga. 2003). "Clear and convincing evidence" requires a higher minimum level of proof than the preponderance of the evidence standard, but less than that required for proof beyond a reasonable doubt. Clark v. Cotton, 440 S.E.2d 165 (Ga. 1994).

Although the facts are distinguishable from the facts presented here, the Georgia Court of Appeals in Stephens v. State, 57 S.E.2d 493 (Ga. Ct. App. 1950), grappled with the issue of normal period of gestation. In Stephens, a child was a child born ten and a half months after the last possible act of coition between a husband and wife. Stephens, 57 S.E.2d at 495. The court cited the state law providing that children born in the "usual period of gestation" after wedlock are legitimate. See id. (discussing GA. CODE § 74-101 (1933), a former version of GA. CODE ANN. § 19-7-20). The court also recognized that a presumption of legitimacy is strong and persuasive, but it can be overcome by a showing of impossibility. See id., at 495-96. However, the facts showed a possibility of access between the husband and wife. See id. Based upon the facts presented, the court determined the child was a child born in wedlock, within the usual period of gestation, after the marriage. See id.

Here, Claimant was born ten months after NH's death. There is no indication in the file that an impossibility of access existed prior to NH's death. Applying the Stephens analysis to the facts presented, an SSA adjudicator could find Claimant was a child born in wedlock within the usual period of gestation.

Additionally, Claimant's birth certificate designating NH as the father provides an additional basis for finding NH to be Claimant's father. In Georgia, a certified copy of a Georgia vital record, such as a birth certificate, "is prima-facie evidence of the facts stated therein. . . ." GA. CODE ANN. § 31-10-26(b) (2008); see GA. CODE ANN. § 31-10-1 (2008) (defining "vital records" to include birth certificates); Huskins v. State, 266 S.E.2d 163, 164 (Ga. 1980) ("A certified copy of a birth certificate is considered prima facie evidence of the facts contained therein and given the same status as the original").

We found nothing in the file is to overcome the strong presumption of legitimacy.

CONCLUSION

Therefore, an SSA adjudicator could determine Claimant is the child of the number holder for the purposes of child's insurance benefits on NH's account.

Mary Ann S~
Regional Chief Counsel
___________
Jennifer L. P~
Assistant Regional Counsel

Very truly yours,

Mary Ann S~
Regional Chief Counsel

Laurie G. R~
Assistant Regional Counsel.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501005012
PR 01005.012 - Georgia - 10/29/2008
Batch run: 01/27/2009
Rev:10/29/2008