The Santa Cruz, California District Office asked whether Kathryn A. K~, born on March
13, 1995, is entitled to surviving child's insurance benefits on the record of the
deceased wage earner, Harold D. K~. Kathryn was allegedly naturally conceived prior
to Mr. K~'s death on May 1, 1994.
On May 1, 1994, Mr. K~ died in a drowning accident in Anacortes, Washington.
His death certificate lists Elizabeth H~ as his wife and shows their common address
in Anacortes. SSA has been unable to procure a marriage certificate from Ms. H~.
On March 31, 1995, Ms. H~ gave birth to Kathryn A. K~ at Island Hospital in Anacortes.
The number of Kathryn's father is listed on birth certificate as "none named."
On August 23, 2001, Ms. H~ completed and signed a Birth Affidavit for Santa Cruz County,
California, where she indicated that Kathryn was born on March 31, 1995, in Anacortes.
Ms. H~ identified herself as Elizabeth A. K~ and identified Kathryn's father as Harold
On October 9, 2002, Ms. H~ lost custody of Kathryn to Santa Cruz County Human Resources
due to a "substantial danger to the physical health of the child or the child is suffering
severe emotional damage, and there is no reasonable means by which the child's physical
or emotional health may be protected without removing the child from the parents'
or guardians' physical custody." Ms. H~ was allowed supervised visitation with Kathryn
twice per week. Pursuant to Ms. H~'s request, a social worker arranged for her to
take a drug and alcohol assessment.
On November 6, 2003, Olivia R~, a foster care eligibility worker with the Santa Cruz
County Human Resources, completed a Social Security Form SSA-4-BK, Application for
Child Insurance Benefits, on behalf of Kathryn. On the form, Ms. R~ indicated that
Mr. K~ was the legitimate biological parent of Kathryn.
Ms. H~ has regained custody of Kathryn and moved to Gilroy, California. Ms. H~ has
not supplied the Social Security Administration (SSA) with any evidence of Kathryn's
paternity, nor has she attempted to pursue the claim for child survivor's benefits
made by Santa Cruz County Human Resources.
A surviving child is entitled to child's insurance benefits if:
1. The wage earner died either fully or currently insured; and
2. The child is the child of the deceased wage earner; and
4. The child was dependent upon the deceased wage earner; and
5. The child is not married; and
6. An application for child's insurance benefits is filed.
See Social Security Act § 202(d), 42 U.S.C. § 402(d); 20 C.F.R.§ 404.350 (2004).  Here, the wage earner was fully insured at the time of his death. Kathryn is under
the age of 18, is not married, and has applied for benefits. Thus, the only issues
are whether Kathryn meets the second and fourth requirements above. If Kathryn meets
the second requirement, she is also considered dependent, which would satisfy the fourth requirement. See 20 C.F.R. § 404.361.
Washington State Law
3. The child is under the age of 18 (there are other tests forthisnot applicable here);
RCW 26.26.116 states:
(1) A man is presumed to be the father of a child if:
(a) He and the mother of the child are married to each other and the child is born
during the marriage;
(b) He and the mother of the child were married to each other and the child is born
within three hundred days after the marriage is terminated by death, annulment, dissolution
of marriage, legal separation, or declaration of validity;
(c) Before the birth of the child, he and the mother of the child married each other
in apparent compliance with law, even if the attempted marriage is, or could be, declared
invalid and the child is born during the invalid marriage or within three hundred
days after its termination by death, annulment, dissolution of marriage, legal separation,
or declaration of invalidity….
Id; see also POMS GN 00306.665. Kathryn was born on March 31, 1995. Since this is 339 days or 48.5 weeks after Mr.
K~ died, Mr. K~ is not presumed to be Kathryn's father under RCW 26.26.116.
We also examined Washington State's intestacy law. See 20 C.F.R. § 404.355 (a)(1). RCW 11.02.005(3) states: "Posthumous children are considered
as living at the death of their parent." The phrase "posthumous children" refers to
children conceived before the death of the parent.
Using May 1, 1994, the date of death of Mr. K~ for the last possible day for Ms. H~
to conceive, an online pregnancy calculator estimated the due date as January 23,
1995.  On February 19, 1995 (42 weeks gestation), the pregnancy calculator suggested that
the mother talk to her healthcare provider about a possible induction and gave no
information for procedure after http://www.pregnancy.org/pregnancycalendar/html_calpage.php?Date=02/01/1995&ElapsedStart=276&DueDate=01/23/1995&ConceptionDate=05/01/1994?February 1995, as it was assumed the child would already be born. 
A typical gestation period is between 266 and 280 days, approximately 38 to 40 weeks.
See The Merck Manual, Section 18, Chapter 249 (17th ed. 1999). According to SSA's medical consultants
in the Center for Disability, Seattle Region, a gestation of 48.5 weeks was highly
unlikely due to health risks to the unborn child. Other sources agree that a gestation
period of this length is extremely rare and dangerous for the fetus. In fact, it is
suhttp://www.familyinternet.com/fisites/pregcom/03080060.htmggested that only 7-10%
of all infants are born at 42 weeks or later.  An infant is deemed "postmature" after 42 weeks of gestation. See Merck, Section 19, Chapter 260. The main problem that exists for postmature infants is
degeneration, called "placental insufficiency syndrome." Id. The fetus may receive inadequate nutrients from the mother, resulting in fetal soft
tissue wasting, and it may develop asphyxia, meconium aspiration syndrome, and hypoglycemia.
Id. Due to these risks to the fetus, virtually all medical information on pregnancies
available recommend induction of labor or caesarean section at 41 to 42 weeks. See fn. 3. Indeed, at 43 to 44 weeks it is considered medically unsound for the mother
to continue with the pregnancy. See fn. 3.
We found two cases in Washington State that address the gestation period. In State v. Schimschal, 437 P.2d 169, 171 (Wash. 1968), the State of Washington had advocated a jury instruction
stating that the extreme limit of a period of gestation is 334 days. In Pierson v. Pierson, 214 P. 159, 160 (1923), the court found that the birth of a child 336 days from
the time husband and wife ceased to cohabit did not conclusively show illegitimacy.
The case went on to suggest had there been evidence of wrongdoing by the parties or
evidence that intercourse had not occurred, that this would have been evidence to
conclude illegitimacy. Id at 159-60. We found no published case where the pregnancy lasted 339 days.
Social Security Ruling (SSR) 73-28 entitled "Relationship-Presumption of Legitimacy
of Child Born After Death of Worker-Gestation Period" examined a specific case in
New Jersey where a child was born 327 days after the death of the number holder and
the evidence reasonably established that the worker and his widow lived together until
his death and the widow engaged in no extra-martial relationships during the period
of possible conception. The mother in this case also brought forth medical evidence
from her physician supporting her contentions regarding the paternity of her child.
Here, SSA has not received evidence of the alleged marriage. Other than the death
certificate showing a common address, there is no evidence that Ms. H~ and Mr. K~
were in fact living together at the time of his death. There is no affidavit from
Ms. H~ that she engaged in no extra-marital relationship during the period of possible
In other cases, OGC recommended that SSA obtain the medical records relating to the
birth to determine whether they are consistent with a long gestation period. See, e.g. Memorandum from OGC Region IV to Assistant Regional Commissioner, Programs, Determination of Whether the Length of the Gestation Period Will Permit a Finding
of Legitimacy-Georgia (December 12, 1984) (315-day gestation period); Memorandum from OGC Region IV to Assistant
Regional Commissioner, Programs, Presumption of Legitimacy (January 30, 1986) (327-day
gestation period); Memorandum from OGC Region IV, to Assistant Regional Commissioner,
Program, Whether a Gestation Period of 306 Days Will Rebut the Presumption of Legitimacy-North
Carolina (September 29, 1987) (306-day gestation period). We make the same recommendation
here since SSA has received no medical records from Ms. H~'s prenatal care or Kathryn's
birth. In sum, based on the record as it currently exists, you would be justified
in denying the claim. However, we do suggest further development.