You submitted the attached claims file to us for an opinion as to whether a child
born 303 days after the death of the wage earner may be found to be the wage earner's
The file indicates that Donna M~ filed for a divorce from Stephen H~ on September
10, 1973 and a decree nisi was granted on February 16, 1974. The divorce would have
become final on August 16, 1974. However, the wage earner was killed on August 1,
1974 when struck by an automobile and the divorce was vacated by his death. Robin
H~ was born on May 31, 1975, 303 days after the wage earner's death. Her birth certificate
lists the wage earner as the father. Donna M~ filed an application for surviving child's
benefits on behalf of Robin H~ on May 11, 1982. She stated at that time that she had
inquired about benefits earlier but was told she was "pregnant too long."
Donna M~ has maintained that Robin was the wage earner's child. She stated that she
and the wage earner were attempting a reconciliation at the time of his death and
were spending a good deal of time together, including nights. She also stated that
she was one month overdue when she gave birth to Robin. Donna M~ mother has submitted
a statement indicating that her daughter and the wage earner were spending nights
together prior to his death although maintaining separate residences. She further
stated that Donna was not seeing any other man for several months prior to August
1974. Dr. John P~ the attending physician, indicated that he first learned of the
pregnancy in November 1974 and that the fetus was an appropriate size for an August
1974 conception. He further stated that a term of 303 days is unusual but not impossible.
Since the wage earner was domiciled in Massachusetts at his death, the status of the
child must be determined by application of such law as would be applied by the courts
of Massachusetts in determining the devolution of intestate personal property. Social
Security Act Sec. 216(h)(2)(A). While Massachusetts courts recognize a presumption
of legitimacy of-children born during wedlock,-1/ we have been unable to locate any
decisions involving the application of the presumption in connection with a child
born posthumously or after the dissolution of a marriage.
A review of Massachusetts case law reveals that in Commonwealth
v. Kitchen, 299 Mass. 7, 11 N.E. 2d 482 (1937), the court ruled that a gestation period of 305
days was unusual and improbable, and that the presumption that the husband was the
father of the child was overcome when it was shown that he had no access to his wife
during the 305 days and the mother was having intercourse frequently with another
man during the normal period prior to birth. The court intimated, however, that in
the absence of evidence of illicit conduct by the wife, the mere fact that the period
of gestation exceeded the usual time might not be sufficient to rebut the presumption
of legitimacy. The Supreme Judicial Court later commented upon the upper limit of
the period of gestation in Silke v. Silke, 325 Mass. 487, 91 N.E. 2d 200 (1950). Referring to decisions from other jurisdictions,
the court stated that the limits of the period of gestation extend from a minimum
of about 230 days to a maximum of 320 days.
Based upon the decisions in K~ and S~ we concluded in an opinion re Charles N. M.~
April 24, 1951, that the presumption of legitimacy applied to a child born 314 days
after the death of the mother's husband. In our opinion re John G~ October 28, 1953,
a case involving a child born 325 days after the death of the wage earner, we concluded
that the courts of Massachusetts would not recognize a presumption of legitimacy where
the period of gestation was longer than 320 days. We further stated that even if the
presumption initially applied, a period of gestation of over 320 days would of itself
rebut the presumption.
Turning to the present case, we believe the courts of Massachusetts would find that
the presumption of legitimacy applies to a child born 303 days after the death of
the mother's husband. Our review of the claims file fails to reveal any evidence sufficient
to rebut the presumption. Accordingly, it is our opinion that Robin H~ may be found
to be the child of the deceased wage earner.
We trust the foregoing satisfactorily answers your inquiry. Please let us know if
you have any questions.
1/ The presumption of legitimacy may be rebutted by "facts which prove, beyond all
reasonable doubt, that the husband could not have been the father." Commonwealth v. Leary, 345 Mass. 59, 185 N.E. 2d 641 (1962); Sayles v. Sayles, 323 Mass. 66, 80 N.E. 2d 21 (1948).