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
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.
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 acc