A woman obtained a divorce from her first husband whom she had not seen in 30 months. Two months after the divorce became final she gave birth to a boy and 2 months after that married an old-age insurance beneficiary. Evidence showed that the beneficiary was the boy's father. Held, the child qualifies from the date of his birth as the legitimate child of the beneficiary, under applicable Iowa law, and is eligible for child's insurance benefits on the beneficiary's earnings record beginning with the month of his birth.

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.

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.

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.

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