20 CFR 404.1101

SSR 73-28

Where worker who died domiciled in State of New Jersey was survived by a child born 327 days after his death (an average gestation period being 270 to 280 days), and evidence reasonably established that worker and his widow lived together until his death and that widow engaged in no extra-marital relationships during period of possible conception, held, longer than average gestation period would not, by itself, under New Jersey law rebut presumption of legitimacy, and claimant is entitled to child's insurance benefits based on deceased worker's earning record.

R and K were married in October 1967. The marriage terminated with the death of R, the worker, on March 14, 1971, fully insured in the State of New Jersey. On February 4, 1972, a posthumous child, C, was born of K, the widow. K filed application on behalf of C for child's insurance benefits as the child of R.

The issue to be decided is whether, under the laws of New Jersey, R's domicile at time of death, the fact that a child is born 327 days after the purported father's death is sufficient to rebut the presumption of legitimacy.

A medical report by K's attending physician concluded that, based on his personal observation and knowledge of medical literature, it was possible for the period of gestation to have begun in March 1971, at a time when R was alive. Moreover, the evidence indicates that R and K lived together until R's death. There is no evidence which would indicate that K engaged in any extra-marital sexual activities during the period of possible conception which would cast any doubt upon C's paternity.

The only doubts are created by the unusually long gestation period, an average gestation period being 270 to 280 days. Annot, 46 ALR 3d 158, 214 (1972). As R died domiciled in New Jersey, this question is resolved by reference to the law of that jurisdiction. Under New Jersey law, a child conceived prior to the dissolution of the marriage is by the common law presumed to be the legitimate child of the husband and wife. See Jackson v. Prudential Insurance Company of America, 254 A.2d 141 (N.J. Super. 1969). This presumption of legitimacy is rebuttable by proof of non-access during the period of possible conception. In Jackson, supra, at 148-150, the court concluded that a period of 350 days was so far in excess of the normal term of gestation as to make it impossible for the decedent to have been the father of the child. The court noted that in Egnozzi v. Egnozzi, 86 A.2d 272 (N.J. Super. 1952), proof of nonaccess for a period of 301 days was not sufficient to rebut the presumption of legitimacy. Reviewing other authorities on this question, the Jackson court also noted pregnancy has been found to vary from 220 to 330 days and there are references to protracted pregnancies of up to 334 days duration. The court, however, found no cases which cited a pregnancy which lasted 350 days.

Although the Jackson court implied that any period of gestation in excess of 300 days would be considered exception, the strict standard of the presumption of legitimacy leads to the conclusion that the New Jersey courts would regard the presumption as controlling in a case such as this where the birth occurred less than 334 days after the death of a worker.

In the present situation, a pregnancy of 327 days is well within the limits of medical possibility as recognized by the courts. In addition, the medical evidence offered by K's attending physician supports her contentions and appears reasonable. As the court stated in Luthner v. Luthner, 179 A.21d 548, 550-551 (N.J. Super. 1962):

The probabilities of the matter are not to be resolved solely on the basis of cold medical statistics, but in the tempering light of the absence of the slightest indication in this record that this unfortunate woman had any amorous association at any time with any other man. In that state of the proofs she should not be assumed to be of adulterous proclivity.

Accordingly, it is held that the fact that there was a longer than average period of gestation in this case does not, by itself, rebut the presumption of legitimacy and C is the child of the deceased worker and entitled to child's insurance benefits.

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