You asked whether a child born 295 days after the death of the wage earner can qualify
for child's insurance benefits as the child of the deceased under the law of American
SUMMARY OF EVIDENCE
On May 12, 2000, Nimarota T~ (wage earner) died while domiciled in American Samoa.
See death certificate. At the time of his death, he was married to Bernadette A. T~ (the
claimant's mother), who was allegedly pregnant with Maria N. T~ (the claimant). See id., marriage certificate, and application. Maria was born on March 4, 2001, that is
over 295 days after the wage earner's death. See death and birth certificates. Her birth certificate reflects Nimarota as her father
and Bernadette as her mother. See id.
On June 28, 2001, Bernadette filed an application for child survivor's insurance benefits
on Maria's behalf as the child of the deceased wage earner. See application. You stated that Maria's application was granted. You subsequently referred
this case to us for an opinion as to whether that decision was appropriate because
it involved a child born after a long gestation period and was identified in an audit
conducted by the Office of the Inspector General.
A. Social Security Program Requirements
A "child" of an individual who dies fully or currently insured under the Social Security
Act is entitled to child's insurance benefits if he or she:
(1) is the insured's child, as defined in 42 U.S.C. § 416(e);
(2) has applied for such benefits;
(3) is unmarried;
(4) is under the age of 18; and
(5) was dependent upon the insured individual at the time of the insured's death.
See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. If a child is the insured's child (meeting
the first requirement), the child is considered dependent upon the insured, satisfying
the fifth requirement. See 20 C.F.R. § 404.361(a). Here, it is undisputed that the wage earner was insured at
the time of his death; the claimant applied for benefits, was under the age of 18
years and was unmarried. The question remains whether the claimant was the child of
the wage earner and was dependent on him within the meaning of the Act, so as to qualify
A claimant may prove that he or she is the child of the worker in any of the following
By State Law:
1. He or she could inherit the worker's property as the worker's child under the law
of intestate succession of the state where the worker was domiciled at the time of
his death. See Social Security Act § 216(h)(2)(A), 42 U.S.C.
§ 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1);
By Alternative Federal Standards:
2. The claimant is the worker's natural child and the mother or father went through a ceremony, which would have resulted in a valid
marriage between them except for a "legal impediment." See Social Security Act § 216(h)(2)(B), 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2).
3. Before his death, the worker acknowledged in writing that the child is his natural child; the worker
was decreed by a court to be the father; or he was ordered by a court to contribute
to the child's support because the claimant was his child. See Social Security Act § 16(h)(3)(C)(i); 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3).
4. The worker is shown by evidence satisfactory to the Commissioner of Social Security
to have been the child's father, and he was living with or contributing to the child's support at the time of his death.
See Social Security Act § 216(h)(3)(C)(ii), 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. §
See also Social Security Ruling 06-02p. We must determine whether the claimant is eligible
under the state intestacy law before we can apply the alternative federal standards.
See, e.g., Ramo v. Shalala, No. 93-36054, 1994 WL 650005, at *2 (9th Cir. November 15, 1994) (remanding the
case back to agency to first determine whether the child is eligible under the state
intestacy law before applying the alternative federal standards).
The law of American Samoa vests intestate inheritance rights in the children of the
intestate. See Am. Samoa Code Ann. § 40.0201 (2004). Further, "[a] child born to a woman married
at the time of its conception . . . is presumed to be the legitimate child of her
husband." Am. Samoa Code Ann. § 45.0103(2004). This provision sets forth a conclusive
presumption of legitimacy, which does not depend on a set gestational period. See id.; see also In re a Minor Child, 25 A.S.R.2d 2 (High Court of Am. Samoa, Trial Division 1993). Another intestacy
statute, however, sets forth that:
No person may succeed to either real or personal property of a decedent unless such
person was in life at the death of the decedent or born within 10 lunar months after
the death of the decedent.
Am. Samoa Code Ann. § 40.0205 (2004). The plain language of the statute would appear
to strictly limit inheritance to descendants born in the lifetime of the intestate
or within ten lunar months (280 days) after the death of the intestate. See id. We are not aware of case law in this jurisdiction interpreting the statute.
Samoan courts, however, have interpreted related intestacy statutes in favor of granting
inheritance rights. See Estate of Tuinanau Fuimaono, 21 A.S.R.2d 121 ((High Court of Am. Samoa, Trial Division 1992) (interpreting Am.
Samoa Code Ann. §§ 40.0201 and 40.0202). In that case, the court rejected disinheritance
as "impermissible discrimination" when paternity or maternity is a genuinely-established
fact. Id. ("Interpretation or application of the American Samoa statutes to disinherit under
these circumstances would result in impermissible discrimination."). Although it is
not clear that it would so interpret § 40.0205, the court appeared to strongly disfavor
restrictive interpretations of intestacy laws.
Further, courts in other jurisdictions have cautioned against the strict application
of durational limitations based on the average gestation. e.g. Dazey v. Dazey, 50 Cal. App. 2d 15, 21 (1945). As the Dazey court explained:
From time immemorial women have reckoned two hundred and eighty days, ten lunar months,
or nine calendar months, from the first day of the last period as the length of normal
gestation, and for practical purposes this may be accepted, because in the majority
of cases it holds true, but one must remember and admit the exceptions. No doubt some
children require a longer time in the uterus for full development than others. Some
seeds in favorable soil grow faster than others.
To conclude that the American Samoa legislature wanted to impose a conclusive rule
based on the average gestation would be unreasonable in light of the well-known need
for exceptions. According to medical data, 10 percent of all pregnancies go past forty-two
weeks or 284 days. Pregnancy Past Your Due Date, www.pregnancy.about.com/library/prm/blamericanbaby19.htm (referring to a report
from the American College of Obstetricians and Gynecologists). Further, it seems anomalous
that the legislature would allow a child born after a longer than average gestation
to benefit from the conclusive presumption of legitimacy, while precluding corresponding
inheritance rights to that same child. Compare Am. Samoa Code Ann. §§ 40.0205 with 45.0103(2004); cf. also Estate of Tuinanau Fuimaono, 21 A.S.R.2d 121 (recognizing "the common-law view equating illegitimacy with disinheritance").
Among other jurisdictions, North Carolina also limits the right to inherit to "[l]ineal
descendants and other relatives of an intestate born within ten lunar months after
the death of the intestate." N.C. Gen. Stat. § 29-9 (2006). As interpreted by the
courts, this statute sets forth a rebuttable presumption that the unborn child was
not in gestation when the intestate died. See Byerly v. Tolbert, 250 N.C. 27, 35 (1959). The presumption can be rebutted by a preponderance of the
evidence establishing parentage. See id. We believe that Samoan courts would similarly interpret their intestacy statute.
In the present case, the presumed, statutory gestation period is 280 days. However,
the claimant's mother believed that she was pregnant with Maria at the time of the
wage earner's death. See application on file. We do not believe that this statement was sufficient to rebut
the presumption. Medical records, if available, should have been obtained to ascertain
whether the child was expected to be late or the pregnancy to be normal, whether a
caesarean section was performed or labor induced, or if at least these procedures
were considered. See, e.g., Inducing Labor, http://www.marchofdimes.com/pnhec/240_20202.asp (indicating that labor is commonly induced when a pregnancy lasts more than 294 days).
If no medical records were available here, a declaration from the claimant's mother
that she did not have sexual relations with another man following her husband's death
should have been obtained.