On June 7, 2006, you asked for our advice regarding whether Marcus W~, would be considered
the child of James W~, Jr., the number holder (NH) under Maryland intestacy law.
Based on our review of the record as it currently exists and our research of relevant
Maryland intestacy statutes and case law, we believe that a Maryland court could find
that Marcus is not the child of the NH. We recommend, however, further development
of the record before determining that Marcus is no longer entitled to receive child's
The NH was receiving Social Security benefits at the time of his death on November
17, 2001. The NH died in Maryland. At the time of the NH's death, he was allegedly
married to Lisa Carol W~.
On September 21, 2002, Lisa gave birth to Marcus in Florida. Marcus was born 308 days
after the NH's death. The birth certificate for Marcus identifies the NH as his father.
On April 3, 2003, Lisa filed for surviving child's insurance benefits on behalf of
Marcus. Lisa named the NH as Marcus' father. On April 9, 2003, Marcus was awarded
benefits effective January 2003.
The Office of Inspector General (OIG) referred this case to determine if the award
to Marcus was proper since he was born 308 days after the NH's death. See POMS GN 00306.020 Presumption of
Legitimacy (stating that in situations where a child is born more than 287 days after the death
of the mother's husband or her divorce from him, the issue must be developed and the
case submitted to the RCC in the absence of a precedent opinion).
The field office has repeatedly tried to contact Lisa to obtain medical records regarding
her pregnancy, but she has not responded to these attempts. There was an earlier indication
in the record that her whereabouts may have been unknown. Lisa's physicians will not
release any medical information to the field office without her signed consent. The
record also indicates that the field office has determined from Family and Children
Services that Lisa is currently not allowed to have any contact with Marcus.
In a Report of Contact on May 15, 2006, Terry W~, an adult son of the NH, reported
that the NH had been living with him in Maryland since approximately May or June 2001
until he died in November 2001. Prior to moving to Maryland, NH had been living in
a hotel in Florida. According to Terry, the NH and Lisa had not been living together
for over two years.
Terry reported that the NH moved to Maryland because the NH had been in poor health
and needed someone to take care of him. Terry also stated that he had been informed
from his grandfather that Lisa allegedly tried to have NH killed and that this matter
was being investigated by the Hillsborough County Sheriff's Department in Florida.
Terry stated he never heard of a posthumous child being born to Lisa until he was
first contacted by SSA. His opinion was that Marcus could not possibly be the NH's
On June 7, 2006, James W~, Sr., (James Sr.), the father of the NH and the grandfather
of Terry, submitted a certified statement (Form SSA-795). In the certified statement,
James Sr. stated that he drove the NH to Maryland on or about October 17, 2001 to
live with Terry. James Sr. stated that the NH moved to Maryland because he was very
ill and that he was incapable of looking after himself. He was on oxygen, in a wheel
chair, and on prescribed morphine. According to James Sr., the NH had been in and
out of hospitals for more than two years and that he would not have been capable of
fathering a child. James Sr. also stated that the other reason that NH was moved to
Maryland to live with Terry was because Lisa was allegedly trying to have him killed.
Section 402(d) of the Social Security Act provides that every child of an individual
who dies a fully or currently insured individual shall be entitled to child's insurance
benefits if that child meets certain qualifications. 42 U.S.C. § 402(d)(1). In determining
whether an applicant is the child of an insured individual, the Commissioner will
apply the intestacy laws of the state where the deceased was domiciled at the time
of his death. 42 U.S.C. ' 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2005). An applicant
having the status of "child" under the state's intestacy laws would have the same
status for purposes of obtaining child's insurance benefits. Id. We are assuming based on your memorandum that the NH's domicile at the time of his
death was Maryland. Accordingly, Maryland law applies.
Under Maryland inheritance law, a child of the decedent who is conceived before the
death of the decedent, but born afterwards shall inherit as if he had been born in
the lifetime of the decedent. Md. Code Ann., Estates & Trusts § 3-107 (2006). Moreover,
a child born or conceived during a marriage is presumed to be the legitimate child
of both spouses. Md. Code Ann., Estates & Trusts § 1-206 (2006). Under this provision,
the husband is the presumed father of the child conceived by his wife during the marriage.
The presumption that a child born or conceived during a marriage is the child of both
spouses is rebuttable. See Md. Code Ann. Estates & Trust § 1-105. Although Section 1-206 does not address how
the presumption may be rebutted, case law suggests that the presumption is rebuttable
in the same way as prescribed under the paternity statute. See Turner v.
Whisted, 607 A.2d 935, 938 (Md. 1992) (recognizing that paternity can be established under
either the Family Law Article or the Estates and Trusts Article and that "the rules
of evidence controlling the proof of paternity ought to be the same in either case.")
v. Smith, 241 A.2d 682 (Md. 1968)).
Under the Family Law Article, the burden is on the complainant to establish by a "preponderance
of the evidence that the alleged father is the father of the child." Md. Code Ann.,
Family Law § 5-1027(a) (2006). The statute further provides that "the [legitimacy]
presumption . . . may be rebutted by the testimony of a person other than the mother
or her husband." Md. Code Ann., Family Law § 5-1027 (2006). The presumption of legitimacy
may also be rebutted by blood tests or genetic testing. See Toft v. State of Nevada, 671 A.2d 99, 110 (Md. Ct. Spec. App. 1996) (stating that scientific data generally
is at least as reliable, if not more significantly reliable, as testimony from one
of the spouses' relative or friends that a husband and wife lived separate and apart)
In this case, Marcus was born 308 days after the NH's death, which is 42 days longer
than the normal gestation period. See
The Merck Manual 2017 (17th ed. 1999) (stating that the typical pregnancy is considered to last 266
days from the time of conception). A question is therefore raised as to whether Marcus
was conceived prior to the death of the NH. For purposes of this analysis, we are
assuming that the NH was still married to Lisa at the time of his death. If Marcus
was conceived prior to the NH's death in November 2001, the NH is presumed to be his
father. If not, the presumption would not apply.
We have found no legal authority in Maryland for the proposition that because a child
is born more than a certain number of days after the death of the husband of the child's
mother, the presumption of legitimacy will no longer apply. Courts in Maryland have
generally been reluctant to take judicial notice of the normal gestation period, particularly
in the absence of medical evidence. In Harward
v. Harward, 196 A. 318, 321 (Md. 1938), for example, the court stated that "neither the mean
nor the extremes of the period of gestation in a woman is so commonly and precisely
known that the courts may take judicial notice of them . . . ." However, a more recent
case, Kassama v. Magat 792 A.2d 1102, 1105, n. 5 (Md. 2002), suggests that courts may now be able to take
judicial notice of normal gestation period. Citing to medical authority for support,
the court stated that although the human gestational period is commonly referred to
as being approximately 280 days (40 weeks) from the first day of the mother's last
normal menstrual period, the actual gestational term, based on ovulatory or fertilization
age, is two weeks shorter --- 38 weeks or 266 days. Id.
Despite this recent case law, we have not found a Maryland case where a court has
actually determined that a child is not the child of the mother's husband solely because
of an abnormally long gestational period and that this would alone rebut the presumption
of legitimacy. Accordingly, we believe that in a case such as this one, a Maryland
court would look at the evidence as a whole, and that it would not only take notice
of the excessively long gestational period, but it would also consider other evidence
in the record to determine whether the presumption of legitimacy should apply or whether
it is rebutted.
In this case, we have statements from both the NH's adult son, Terry, and the NH's
father, James Sr., that the NH moved to Maryland in October 2001 at the latest. They
explain that the NH had to leave Florida because he was seriously ill and incapable
of taking care of himself. Terry also states that the NH had not lived with Lisa for
over two years prior to his move to Maryland.
There is no evidence in the record that Lisa visited the NH in Maryland in October
or November prior to his death. Indeed, based on the statements from Terry and James
Sr. that Lisa allegedly tried to have the NH killed, it seems highly unlikely that
there was any contact between Lisa and the NH in the weeks or month before he died.
There is minimal evidence from Lisa. We have only Marcus' birth certificate listing
the NH as the father and the medical records regarding Lisa's caesarean section operation.
The birth certificate was obviously completed after the NH's death and it appears
that the only reason that the NH's name was placed on the birth certificate was because
he was allegedly married to Lisa. The cesarean section records did not reveal any
evidence regarding Marcus, other than his Apgars score which was normal at 9/9 and
that he weighed 8 pounds, 2 ounces. We also do not have any genetic or blood tests
to consider, and there is no evidence from Lisa that she had any contact with the
NH in the weeks before his death.
This case is of course complicated by the fact that Lisa is not responding to the
field office's attempts to contact her so that further medical records or statements
can be obtained, particularly from her physician regarding her pre-natal care and
the length of her pregnancy.
In sum, based on the record as it currently exists, which would include the abnormally
long gestational period, the statements from Terry and James Sr., and the minimal
evidence from Lisa, we believe a Maryland court would likely find that Lisa has not
established by a preponderance of the evidence that the NH is Marcus' father. The
evidence is sufficient to raise a question of fact as to whether Marcus was conceived
prior to the NH's death and we think that a court could find that the presumption
of legitimacy has been rebutted.
Accordingly, you would be justified in reopening the prior award of benefits. However,
we would suggest further development before you determine whether Marcus' benefits
should be terminated. You may want to consider getting a statement from the NH's physician
to confirm whether the NH was physically incapable of fathering a child due to his
medical condition, as suggested by James Sr. Likewise, you may want to consider getting
Marcus' pediatrician records from the individual who apparently now has custody of
Marcus. The pediatrician records may indicate whether Marcus was a post-mature child
at birth. Any additional medical evidence that is obtained can be submitted to a medical
consultant for an opinion if needed.
Additionally, as stated above, we recommend that you have Terry sign the SSA-795 so
that his statements will be certified. See POMS GN 04120.015(B)(5) (explaining that the SSA-795 should be signed by the witness).
We also recommend that you confirm whether the NH and Lisa were divorced at the time
of his death as indicated on the birth certificate. In such a situation, the presumption
of legitimacy would not apply.
Based on the above, we believe that a court could find that Marcus was not the child
of the NH under the Maryland intestacy law based on the record as it currently exists.
However, as explained above, we recommend further development before you make this
Donna L. C~
Regional Chief Counsel
Assistant Regional Counsel