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.
SUMMARY OF EVIDENCE
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
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.