You have asked whether Linda K. H~'s ("Linda") statements to the effect that the number
holder ("NH") Gerhard H~ was not the biological father of her child Eric B. H~ ("Eric")
are sufficient to rebut the presumption of legitimacy. For the reasons discussed below,
we believe that Linda's statements provide clear and convincing evidence that the
NH is not Eric's father.
The materials you provided indicate that the NH was receiving retirement benefits
from May 1980 until his death on November 3, 1997, while domiciled in South Dakota.
The NH was survived by his wife, Linda, whom he married on July 30, 1996. Eric was
conceived during their marriage and was born on June 26, 1998, approximately 8 months
after the NH's death. The NH was listed as the father on the birth certificate. In
July 1998, Linda filed applications for survivor's benefits for herself and Eric on
the NH's record. Eric is currently receiving monthly benefits.
Section 216(h)(2)(A) of the Social Security Act ("the Act"), 42 U.S.C. § 416(h)(2)(A)
defines a child for purposes of entitlement to child's insurance benefits. This section
provides that a child is the child of a currently insured individual if he would be
entitled to inherit under the intestacy laws of the State in which the insured individual
was domiciled at the time an application for benefits is filed. Since the NH was domiciled
in South Dakota at the time of application, in 1998, the applicable law is the South
Dakota intestacy law that was in effect at that time. See 20 C.F.R. § 404.354(b) (1999).
As pertinent here, South Dakota law of intestate succession provided in 1998 that
"the relationship of parent and child at each generation [is] determined by the definition
of child and parent in this code." S.D.C.L. § 29A-1-201(10). In South Dakota, "[t]he
husband and wife are presumed to be the parents of any child born to the wife during
the marriage or within ten months after the dissolution of the marriage." S.D.C.L.
§ 25-5-3; see also id. § 25-8-57 (rebuttable presumption of legitimacy). A marriage
is dissolved by the death of one of the parties. S.D.C.L. § 25-4-1. Thus, Eric is
presumed a legitimate child of the NH because he was born within ten months of the
The presumption of legitimacy may be overcome only by producing "clear and convincing"
evidence. In re F.J.F. & F.M.F., 312 N.W.2d 718, 721 (S.D. 1981); see also Smith v.
Smith, 24 N.W.2d 8, 9 (S.D. 1946). Here, Linda's statements that the NH was not Eric's
father should satisfy the clear and convincing evidence standard. Specifically, on
June 28, 1999, Linda stated that a Mr. D~ was the father of Eric (Interview, p. 12).
Linda also stated that "obviously" the NH was not the father because Eric was black
(Interview, pp. 27-28). In addition, in December 1999, a Yankton County Circuit Court
Judge noted Linda claimed Mr. D~ was the biological father of Eric (Decision on the
Abuse and Neglect Adjudicatory Hearing in the Matter of EB-JH, p. 2) (copy attached).
Linda also stated she listed the NH as the father on Eric's birth certificate even
though she knew the NH was not Eric's father. (Memorandum Opinion, p. 2) (copy attached).
Thus, Linda's statements should be sufficient to rebut the presumption of legitimacy
and reopen and revise the initial determination to find that Eric is not the NH's