M’s first husband deserted her in December 1958. In June 1961 M obtained a divorce from the deserting spouse. Two months later, in August 1961, a child, C, was born to her.

In October 1961, M married F, who was the biological father of her child C. F was already receiving old age social security benefits, which he became entitled to in 1960.

In November 1961 F applied for child’s social security benefits for C. Among other requirements, all of which were satisfied, F needed to show that either C was his natural child, his legally adopted child, or had been his step child for over a year.

F had not adopted C, nor had C been his stepchild for more than a year at the time of the application. Thus, F needed to show that under Iowa law (the state in which he was domiciled at the time of his application) C was his child, entitled to inherit personal property from him under the state’s laws of intestate devolution.

Iowa law had a strong presumption that a child conceived during a marriage, but born after the marriage terminated, was the legitimate offspring of the former husband. This presumption could be overcome if there was independent evidence that the husband did not have access to the wife during the time when the child could have been conceived.

This evidence could not come from the wife, the former husband, or the alleged father.

In this case, evidence from friends, neighbors, and police officers established that M had gone missing and could not be located and therefore, did not have access to M during the time when the child could have been conceived.

Once the former husband’s non-access was established, evidence from the mother and alleged father was able to be used to establish the child’s paternity. Both M and F stated that C was their child, and F was listed as the child’s father on the birth certificate. This evidence established F as C’s father.

F’s marriage to M after the child was born legitimated the child and, under Iowa law, this legitimation was retroactive to the child’s birth.

Held: C was entitled to child’s social security benefits beginning the month of his birth in August 1961.

See Social Security Ruling (SSR) 62-53.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.