TN 6 (09-06)

PR 01010.004 Arizona

A. PR 06-279 OPINION: Legitimacy of Child Born After 288-Day Gestation Period in the State of Arizona Claimant: Angela J. M~ o/b/o Jaime J. G~Wage Earner: Jaime G~ M~ Social Security Number: ~

DATE: August 10, 2006


Under Arizona law, a child born 288 days after the number holder's death is presumed to be a child born of the marriage of the number holder and the child's mother since the birth took place within 10 calendar months following his death.



You asked whether a child born 288 days after the death of the wage earner can qualify for survivor's insurance benefits as the child of the deceased under Arizona law.


On February 17, 1998, Angela Judith G~ filed an application for lump-sum death payment. See application on file. In her application, she alleged she was married to the wage earner, Jaime G~ M~, on March 28, 1990, in Tucson, Arizona, and that "[t]he marriage ended by death on December 28, 1997." Id.

Also on February 17, 1998, Angela filed an application for child's insurance benefits on the wage earner's account, listing four children, , Abraham A. K (DOB, September 18, 1987), Catalina M. G~ (DOB, April 28, 1991), Jamie G~ (DOB, July 30, 1992), and Angelica J. G~ (DOB, June 1, 1995). The birth certificates for these children are not in the claims file, although the file does show Abraham K~ as the wage earner's step-child.

On August 14, 2002 (more than four years after the wage earner's death), Angela (last name shown as M~) filed an application for child survivor's insurance benefits on behalf of Jaime Jr. G~ (Claimant) as the child of the deceased wage earner. See application on file. The application alleged that the wage earner died on December 28, 1997, and that Claimant was born 288 days later, on October 12, 1998. The file shows wage earner's date of birth is shown as October 12, 1968. Claimant's birth certificate is not in the claims file.

You stated that Claimant's application was granted. You subsequently referred this case to us for an opinion as to whether that decision was appropriate because it involved a child born after a long gestation period and was identified in an audit conducted by the Office of the Inspector General.


We determine a child's eligibility for survivor's insurance benefits under section 202(d)(1) of the Social Security Act by determining whether he is the "child" of an insured individual as defined in section 216(e) and was dependent on the insured at the time of his death under section 202(d)(3). See Social Security Act § 202(d)(1); 20 C.F.R. § 404.350 (2006); Acquiescence Ruling (AR) 05-1(9), 70 Fed. Reg. 55656 (September 22, 2005). In all determinations or decisions made before September 22, 2005, section 216(h) remains the appropriate analytical framework for determining whether a child is the insured's child for the purposes of section 216(e). See id. (limiting application of Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004) to determinations or decisions made on or after that date). Section 216(h)(2)(A), in particular, directs us to "apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled . . . at the time of his death . . . ." See Social Security Act § 216(h)(2)(A).

Arizona law vests intestate inheritance rights in children in gestation at the death of the parent. See Ariz. Rev. Stat. §§ 14-2104(A), 14-2108 (2006). Further, a gestation period of up to ten months is considered normal, and the resulting child benefits from a presumption of legitimacy. See Ariz. Rev. Stat. §§ 25-814(A)(1) ("[a] man is presumed to be the father of a child if he and the mother were married at any time in the ten months immediately preceding the birth or the child is born within ten months after the marriage is terminated by death . . . ."; Ariz. Rev. Stat.

§ 36 334(C)(1) (corresponding vital statistics statute). A month "means a calendar month unless otherwise expressed." Ariz. Rev. Stat. § 1-215 (emphasis added).

Under these statutes, an individual who died on December 28, 1997, may be the presumed father of a child born 288 days later on October 12, 1998, because the child was born within ten calendar months of the individual's death. See Ariz. Rev. Stat. §§ 25-814(A)(1). Thus, the alleged 288-day gestation period is not unusual under Arizona law.

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PR 01010.004 - Arizona - 05/29/2008
Batch run: 01/27/2009