Where the child claimant was born 339 days after the NH died, and the child's mother has not submitted evidence of her marriage to the NH, medical evidence concerning her prenatal care or the child's birth, or evidence that she was living with the NH, the child cannot qualify as the NH's child under Massachusetts intestacy law.

QUESTION

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.

FACTUAL BACKGROUND

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 D. K~.

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.

ANALYSIS

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). ^[1] 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); and

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. ^[2] 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. ^[3]

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. ^[4] 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 conception.

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.

LEGITIMACY — Presumption and Proofs — FLORIDA - TEXAS

In Florida, a child's status (whether legitimate or illegitimate) is determined by the law of the state in which the child was born.

10 Am Jur.2d Bastards, §9, p. 849 (1963).

In your memorandum of February 20, 1981, you asked whether the law of Florida or the law of Texas would be applied to determine the legitimacy of the subject child.

The wage earner married Barbara in E1 Paso, Texas on June 17, 1973. Four months later, Barbara gave birth to Jason on October 8, 1973 in E1 Paso, Texas. The birth certificate reflects the wage earner as Jason's father. There is nothing to indicate that Jason had other than a full period of gestation. The marriage between the wage earner and Barbara ended in a divorce granted by a Court in the State of Oregon on October 25, 1975. The court found that there was no issue of this marriage. In a written statement dated October 2, 1980, Barbara stated that Jason was not the natural child of the wage earner. The wage earner died on August 4, 1980 domiciled in the State of Florida. On September 12, 1980, Barbara filed an application seeking mother's benefits and child's benefits on the wage earner's earnings record. There is nothing in the file to support a finding that Jason was a stepchild of the wage earner, that the wage earner intended to adopt Jason or that the wage earner had acknowledged in writing that Jason was his son.

Since a child's relationship to a wage earner is to be determined by the laws of the state in which the wage earner was domiciled at his death, Florida's law will be applied to determine Jason's relationship to the wage earner. 20 C.F.R. 404.354. Although we were unable to find specific authority relative to Florida's choice of law under these circumstances, it is our opinion that Florida would apply the generally accepted rule. The general choice of law rule determining one's status as legitimate or illegitimate is the law of the place of birth. However, Florida is not bound to apply Texas law to determine Jason's status if to do so would contravene an established Florida policy or offend the morals of that state. 1O AM Jur. 2, Bastards, §9, p. 849 (1963).In the present case, Jason was born during wedlock but was conceived prior to marriage. Under both the law of Florida and the law of Texas, a child born during wedlock but conceived prior thereto creates a strong but rebuttable presumption that the child is the issue of the marriage partners. Hills v. Parks, 373 So. 2d 376 (1979); Knauer v. Barnett, 360 So. 2d 399 (I978); Neff v. Johnson, 39I S.W. 2d 700 (1965). Additionally, the statement by Jason's mother dated October 2, 1980, can also be considered to rebut the presumption of paternity in both Florida and Texas since neither state currently follows the Lord Mansfield rule (L~ Emory, W.— ~ —RA IV (W~) to ARC, Atlanta 7/11/80); Wedgman v. Wedgman 541 SW 2d 522 (i976); Davis v. Davis, 52I SW 2d 603 (i975). Since neither Florida nor Texas apply the Lord Mansfield Rule and since both States presume the legitimacy of children born during wedlock the application of either State's law would yield the same result in this matter.

The evidence of record capable of rebutting the presumption of legitimacy is the divorce judgment of the Oregon court finding there was no issue of the marriage. Additionally, Jason's mother made a written statement dated October 2, I980, in which she specifically stated Jason was not the natural child of the wage earner. According to the divorce decree, Jason's mother was seeking the divorce. She did appear at the proceeding and was assisted by counsel. The wage earner did not appear in person but was aware of the proceedings and specifically consented to the matter going forward without his presence. Assuming a full and thorough inquiry by the Court and given the lack of the wage earner's presence, the Court specifically found there was no issue of the marriage. In the absence of any jurisdictional defect, this Oregon judgment is binding on Florida under the full faith and credit clause of the U.S. Constitution. Williams v. North Carolina, 325 U.S. 226, 65.S.Ct. 1092, reh denied (1945).

Although there is a strong but rebuttable presumption of Jason's legitimacy, it is the opinion of this office that given the Oregon divorce judgment and the mother's statement, you would be warranted in finding that Jason is not the natural son of the wage earner.