SSR 62-35. RELATIONSHIP -- PRESUMPTION OF LEGITIMACY OF CHILD BORN AFTER DEATH OF WORKER

H died August 14, 1960, domiciled in Missouri. On June 14, 1961, a child,

C, was born to H's widow. This was 304 days after H's death. A few weeks

later, the widow filed application on H's earnings record for child's

insurance benefits on C's behalf. C's birth certificate was submitted to

establish the child's relationship to H. Entries on the birth certificate

stated that H was C's father and that the duration of the pregnancy was

nine months. To reconcile the discrepancy, an attempt was made to obtain

additional evidence but the widow refused to permit her physician to give

any further statement, and did not offer any other evidence to show that C

was H's child.

Under section 216(h)(2)(A) of the Social Security Act, C would be

considered H's child for purposes of entitlement to child's benefits if,

under the law of the State in which H was domiciled at his death

(Missouri), she would have the status of his child for purposes of

inheritance from him. In this case, C has such status if H was her natural

father. Relative to the question of paternity, under Missouri law there is

a strong presumption that a child conceived during wedlock is the child of

its mother's husband. If such presumption wee here applicable, it would

(unless rebutted) establish H's paternity of C. As to this presumption,

Missouri's courts will take judicial notice of the fact that 280 days is

the normal period of gestation and that a variation of a few days is

reasonable. However, where the period of time between the death of the

mother's husband and the birth of the child exceeds 300 days, as in the

present case, affirmative evidence showing that the child was conceived

prior to the husband's death would be necessary to give rise to this

presumption.

fact that 280 days is

the normal period of gestation and that a variation of a few days is

reasonable. However, where the period of time between the death of the

mother's husband and the birth of the child exceeds 300 days, as in the

present case, affirmative evidence showing that the child was conceived

prior to the husband's death would be necessary to give rise to this

presumption.

In this case, therefore, it is clear that the presumption of legitimacy

may not be applied and that affirmative evidence is necessary to show that

C was conceived during H's lifetime. Since no such evidence has been

submitted, it is held that the requisite relationship between C and

H has not been established. Therefore C does not qualify for child's

insurance benefits on H's earnings record.