You have asked whether the evidence shows the claimant is the child of the deceased
number holder for determining the claimant’s eligibility for child’s insurance benefits
on the number holder’s earnings record.
For the reasons set forth below, we conclude that the evidence presented does not
rebut the presumption of legitimacy of a child born in wedlock in North Carolina and
the claimant is not the number holder’s child for determining the claimant’s eligibility
for CIB on the number holder’s earning record.
According to the information provided, Fred, the number holder (NH), died on January
18, 2013. NH’s death certificate indicates he was a resident of North Carolina when
he died. Wesley (Claimant) was born on October, in North Carolina. Claimant’s birth
certificate lists Tammy as Claimant’s mother and William as his father. A South Carolina
marriage certificate indicates Claimant’s mother married William in June 1985.
In May 2013, NH’s father applied on behalf of Claimant for CIB and the lump sum death
payment on NH’s earnings record. The evidence provided includes a copy of a South
Carolina marriage certificate showing Claimant’s mother married NH on June 22, 1990.
NH’s mother provided a letter in which she referred to Claimant as her grandson and
stated NH was present at Claimant’s birth. NH’s father also provided a letter in which
he referred to himself as Claimant’s grandfather. NH’s mother and father both reported
Claimant has lived with them since 1992.
In a conversation with Agency personnel, Claimant’s mother reported she and William
were married when Claimant was born, but they had been separated and William was in
prison. Claimant’s mother later provided a statement in which she reported she separated
from William in February 1986, and began living with NH. Claimant’s mother also reported
she divorced William in June 1988. Agency personnel contacted the Mecklenburg County
Superior Court, North Carolina, and confirmed Claimant’s mother and William were divorced
on June 27, 1988. Claimant’s mother also reported to Agency personnel that she would
provide a statement explaining why William’s name is on Claimant’s birth certificate,
but the information provided does not include an explanation from Claimant’s mother.
Child status under § 216(h)(2)(A) of the Social Security Act (Act)
To qualify for CIB and the lump-sum death payment on the earnings record of an individual
who died a fully or currently insured individual, a claimant must be that individual’s
“child.” See Act §§ 202(d), 202(i); 20 C.F.R. §§ 404.350(a)(1), 404.390, 404.392(a)(2) (2013).
All references to 20 C.F.R. are to the 2013 version unless otherwise noted.
“Child” includes “the child” of an insured individual. See Act § 216(e)(1); 20 C.F.R. § 404.354; Astrue v. Capato, 132 S. Ct. 2021, 2027-28 (2012).
A claimant may show he is “the child” of a deceased insured individual, within the
meaning of section 216(e)(1) of the Act, under either section 216(h)(2)(A), section
216(h)(2)(B), or section 216(h)(3)(C) of the Act. See C~, 132 S. Ct. at 2028. Under section 216(h)(2)(A), a claimant must show he would be
entitled to a child’s share of the insured individual’s intestate personal property
under the law of the State in which the insured individual was domiciled when he died.
See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Program Operations
Manual System (POMS) GN 00306.055.A.1.
NH’s death certificate indicates he was domiciled in North Carolina when he died.
Therefore, we look to North Carolina intestacy law to determine whether Claimant is
NH’s child for purposes of section 216(h)(2)(A) of the Act. Under North Carolina law,
“[w]hen conception occurs during the marriage of its mother, a child is presumed to
be the legitimate offspring of the then husband of the mother, notwithstanding it
is born after the termination of the marriage.” State v. Bowman, 52 S.E.2d 345, 345
(N.C. 1949); see also N.C. Gen. Stat. Ann. § 50-11 (West 2013) (stating a divorce cannot render a child
illegitimate if the child was “in esse, or begotten of the body of the wife” during
the marriage). Thus, although Claimant’s mother divorced William four months prior
to Claimant’s birth, Claimant is presumed to be a child born of the marriage and William’s
The presumption of legitimacy of a child is considered one of the strongest known
to the law. See In re Legitimation of Locklear by
J~, 334 S.E.2d 46, (N.C. 1985). This presumption can be overcome only by facts and circumstances
showing the presumed father (the husband) could not be the natural father. See Eubanks v. Eubanks, 159 S.E.2d 562, 568 (N.C. 1968); Jeffries v. Moore, 559 S.E.2d 217, 218 (N.C. Ct. App. 2002); Carpenter v. Hawley, 281 S.E.2d 783, 785-86 (N.C. Ct. App. 1981); see also N.C. Gen. Stat. Ann. § 49-12.1(b) (West 2013) (“The presumption of legitimacy can
be overcome by clear and convincing evidence”). “Clear, cogent, and convincing describes
an evidentiary standard stricter than a preponderance of the evidence, but less stringent
than proof beyond a reasonable doubt.” North Carolina State Bar v. Sheffield, 326 S.E.2d 320, 323 (N.C. 1985)(citing In re M~, 316 S.E.2d 246 (N.C. 1984)). Examples of facts and circumstances that may overcome
the presumption include impotency of the presumed father, the presumed father did
not have access to the mother when the child was conceived, evidence the mother was
notoriously living in adultery, and evidence based on blood group testing results.
See Jeffries, 559 S.E.2d at 218; see also N.C. Gen. Stat. Ann. § 8-57.2 (West 2013) (“Whenever an issue of paternity of a child
born or conceived during a marriage arises in any civil or criminal proceeding, the
presumed father or the mother of such child is competent to give evidence as to any
relevant matter regarding paternity of the child, including nonaccess to the present
or former spouse”). In Wake County ex rel. Manning v. Green, 279 S.E.2d 901, 905 (N.C. Ct. App. 1981), the child’s mother testified that she
had not seen her husband in five years and had sexual relations only with the putative
father during the period in which conception occurred. A Wake County Child Support
Investigator also testified that she could not locate the husband to obtain his statement.
See id. at 902. The North Carolina Court of Appeals found that the wife’s testimony
coupled with the testimony of the child support investigator provided sufficient proof
to overcome the presumption of legitimacy. See id. at 905.
Here, we do not believe the record contains clear and convincing evidence to rebut
the presumption that William is Claimant’s father. Claimant’s mother stated that while
she was married to William, not NH, at the time of Claimant’s conception, William
was incarcerated and she and William separated in February 1986. After her separation
from William, Claimant’s mother stated she lived with NH. However, Claimant’s mother
made no assurances that she had no contact with William during the relevant period,
and there is no evidence showing the time period William was incarcerated. Following
the holding in Wake County, we believe a North Carolina court would afford little
probative weight to the statement of Claimant’s mother, because there is no other
evidence supporting her statement or showing William had no access during the relevant
period. Also, Claimant presented no DNA or similar scientific evidence to support
his claim that NH is his father.
In addition, Claimant’s birth certificate issued by the State of North Carolina, Mecklenburg
County, Registrar of Deeds, named William as the father of Claimant. Birth certificates
are prima facie evidence of the facts contained therein. See N.C. Gen. Stat. Ann. § 130A-93(h) (West 2013). Also, the record does not indicate
William denied paternity of Claimant. Thus, we believe based on North Carolina law
Claimant has not presented clear and convincing evidence sufficient to rebut the presumption
that Claimant is William’s child. Based on the information provided indicating a determination
was made, our opinion does not address the issue of whether or not Claimant was the
stepchild of NH.
Child status under § 216(h)(2)(B) of the Act
If a claimant is the son or daughter of an insured individual but cannot show he or
she is “the child” under section 216(h)(2)(A) of the Act, he or she may be deemed
“the child” of the insured individual if the insured and the other parent went through
a marriage ceremony that would have been valid but for certain legal impediments.
See Act § 216(h)(2)(B); 20 C.F.R. § 404.355(a)(2); C~, 132 S. Ct at 2028; POMS GN 00306.090(A)(1). In this case, Claimant’s mother and NH were married after Claimant’s birth.
However, there is no indication that any legal impediments to the marriage existed.
Thus, the available evidence also does not establish that Claimant is NH’s child under
section 216(h)(2)(B) of the Act.
Child status under § 216(h)(3)(C) of the Act
To establish child status under section 216(h)(3)(C) of the Act, the claimant must
show he is the biological child of the number holder and one of the following: (1)
the number holder acknowledged in writing that the claimant is his child; (2) a court
decreed the number holder to be the claimant’s father; (3) a court ordered the number
holder to contribute to the support of the claimant; or (4) the number holder is the
claimant’s father and was living with or contributing to the support of the claimant
when the number holder died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100. The information provided does not include a written acknowledgement by NH that Claimant
was his child, a court order for NH to pay child support, a court order decreeing
NH to be Claimant’s father, or evidence that NH was living with or contributing to
Claimant’s support. Thus, the available evidence also does not establish that Claimant
is NH’s child under section 216(h)(3)(C) of the Act.
Based on the information provided, we conclude the evidence is not sufficient to rebut
the presumption of legitimacy of a child born in wedlock under North Carolina law
and Claimant is not the child of NH for the purposes of child’s insurance benefits.
Mary A. Sloan
Regional Chief Counsel
Jennifer L. Patel
Assistant Regional Counsel