SSR 62-53. RELATIONSHIP -- EFFECTIVE DATE OF LEGITIMATION OF CHILD BY INTERMARRIAGE OF PARENTS

A worker, F, became entitled to old-age insurance benefits in 1960. In

October 1961 he married M, the mother of a boy, C, born in August 1961. In

November 1961, F filed application for child's insurance benefits on

behalf of C.

M had been married once before her marriage to F. Her first husband had

deserted her in December 1958. Efforts had been made to locate him through

relatives, the police, neighbors, friends, and social work agencies, but

without success. Convincing evidence from these sources established,

independently of any information from M or F, that M had not seen her

first husband since December 1958. M obtained a divorce which became final

in June 1961, 2 months before C's birth and 4 months before she married F.

She and F stated that F was the child's father. F's name was entered as

C's father on C's birth certificate. Both F and M were domiciled in Iowa

when all these events (including the filing of the application for child's

insurance benefits) occurred.

To be entitled to child's insurance benefits for any month on a worker's

earnings record, under sections 202(d) and 216(e) of the Social Security

Act, a claimant must (among other requirements, all of which were met by C

in August 1961) be the worker's child or legally adopted child, or be his

stepchild and have been his stepchild for at least a year. Section

216(h)(2) provides as pertinent to this case that, in determining whether

the claimant is the worker's child, the Secretary shall apply such law as

would be applied in determining the devolution of intestate personal

property by the courts of the State in which the worker was domiciled at

the time the claimant's application was filed. A claimant who, according

to such law, would have the same status as a child of the worker for the

purpose of sharing in his intestate personal property shall be deemed to

be his child.

y such law as

would be applied in determining the devolution of intestate personal

property by the courts of the State in which the worker was domiciled at

the time the claimant's application was filed. A claimant who, according

to such law, would have the same status as a child of the worker for the

purpose of sharing in his intestate personal property shall be deemed to

be his child.

As F's stepchild, C would not, under the provisions cited above, be

eligible for child's insurance benefits until October 1962, a year after F

married C's mother. F had not adopted C. Therefore, to decide whether C is

eligible for benefits beginning before October 1962, it will be necessary

to determine by application of Iowa law whether F is C's father; if so,

whether C has inheritance rights (i.e., can be considered as having the

potential right to inherit) from F; and, finally, if he does, what is the

first month as of which he may be considered to have such inheritance

rights.

C was conceived before termination of M's first marriage, but was born

after termination of that marriage and before F and M were married. Under

Iowa law, there is a strong presumption that a child conceived during the

marriage of a husband and wife and born after termination of the marriage

is the legitimate child of the former husband. This presumption can be

overcome if there is sufficient evidence to prove that the former husband

did not have access to the wife at any time when the child could have been

conceived. Such non-access by the former husband may be established only

by independent evidence from sources other than the child's mother, the

former husband, or the alleged father. Only after the presumption has been

rebutted by independent evidence may evidence from the child's mother or

the alleged father be considered to establish that the latter was the

father of the child.

been

conceived. Such non-access by the former husband may be established only

by independent evidence from sources other than the child's mother, the

former husband, or the alleged father. Only after the presumption has been

rebutted by independent evidence may evidence from the child's mother or

the alleged father be considered to establish that the latter was the

father of the child.

The evidence in this case was sufficient to overcome the presumption,

since independent sources furnished convincing evidence that M and her

first husband had not seen each other for 32 months before C was born. The

presumption having been rebutted, there is every reason to credit the

statements and supporting evidence of F and M that F is the father of the

child.

Since F and M were not married when C was born, C was illegitimate at

birth. However, under Iowa law an illegitimate child is legitimated by the

intermarriage of the parents. Furthermore, such legitimation is

retroactive in effect to the date of the child's birth, since it gives the

child the same status as a child born in wedlock, i.e., he has the same

potential inheritance rights from birth as if he were legitimate at birth.

Under the law of Iowa the legitimate child of any person has the potential

right to share in that person's intestate personal property.

The marriage in October 1961 of F and M thus gives C the same potential

inheritance rights from F from the time of his birth in August 1961 as if

he had been F's son born in wedlock. Accordingly, it is held that C

qualifies as F's child from the time of his birth for purposes of

entitlement to child's insurance benefits and is entitled to such benefits

beginning August 1961.