The widow of a worker who died domiciled in Missouri filed application on the worker's earnings record for child's insurance benefits on behalf of a girl born to her 304 days after the worker's death. Held, under Missouri law the girl is not presumed to be the worker's child in the absence of affirmative evidence that conception occurred before the worker's death. Since such evidence has not been submitted, the girl does not qualify for child's insurance benefits on the worker's earnings record.

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.

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.

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