20 CFR 404.320 and 404.1109
The deceased insured individual's widow has challenged the legitimacy of a child conceived and born during a former marriage of the insured individual. The child's mother and the insured individual were married on November 28, 1960, and divorced on June 30, 1969. Two daughters were born during the marriage. The child in question was born October 4, 1963, and her birth certificate shows the insured individual as father.
The insured's military records show that he departed for Germany on November 11, 1962, which was 328 days prior to the child's birth, that he remained in Germany without returning or taking leave until November 1964. The mother of the child stated that she and the insured had been separated since March or April of 1962, but they had occasionally had sexual relations thereafter, including during a three-day visit in November 1962. Hospital records of an August 1963 obstetrical examination of the mother show that she was 7 months pregnant at the time; and birth records indicate that at the time of delivery, the mother was 38 weeks pregnant. The child weighed 5 pounds, 15 ounces at birth.
Other evidence in the case includes military records showing a different child as the only dependent child of the insured individual. The 1969 divorce decree states that one child was born of the marriage. Furthermore, in March 1972, the children's mother filed a petition against the insured individual under the Uniform Support of Dependents Law and stated that the other child was the child born of the marriage.
Under applicable Minnesota law there is a strong presumption that a child born to a married woman during wedlock is presumed to be the child of her then husband. A question is raised, however, as to whether this presumption is still applicable where the husband and wife were not living together and a child is born 328 days after the last possible sexual contact between the child's mother and the mother's husband. Under Minnesota law the presumption of the legitimacy of a child conceived during wedlock, while strong, is not conclusive, and may be rebutted by clear and satisfactory evidence that there was no sexual relationship between the parties during the period in which conception must have occurred. See Curry v. Felix, 149 N.W. 2d 92, 95 (Minn., 1967) citing Haugen v. Swanson, 16 N.W. 2d 900 (Minn., 1944).
Minnesota courts have stated that the period of gestation may vary from case to case, and that there are exceptional cases of record of gestation periods of 325 days or longer. See State v. Domish, 191 N.W. 1002 (Minn. 1923). If the only evidence in this case was a gestation period of 328 days, the presumption of legitimacy would not be overcome. However, in this case, there is additional evidence to indicate that this was not a pregnancy of 11 months, i.e., the size of the child at birth and the medical reports at the time of delivery and 2 months before indicate that this was not a pregnancy of 11 months duration. Thus, it would be reasonable to conclude that conception of the child occurred at a point in time when sexual intercourse between the insured and the child's mother was not possible. The divorce decree, support petition, and military records also support a conclusion that the child was not fathered by the insured individual.