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