United States: What Are The Inheritance Rights Of Children Conceived Posthumously?

Earlier this month the U.S. Supreme Court agreed to decide whether twins conceived through in vitro fertilization after the death of their biological father are entitled to collect Social Security survivor benefits. In its Petition for Certiorari the Social Security Administration reported receiving more than 100 applications for survivor benefits for children conceived posthumously.

In Astrue v. Capato the Supreme Court will tackle an issue of increasing relevance in today's technological world - an issue that first surfaced long after the enactment of the Social Security Act (the "Act"). The case involves twins conceived a year after their father's death from esophageal cancer. Following his diagnosis, Robert Capato, like many young cancer patients facing treatment that might render them infertile, chose to preserve his fertility by banking his sperm. A year after his death his wife used the frozen sperm to become pregnant. She ultimately gave birth to twins.

The government contends that the Capato twins are not entitled to social security survivor benefits because they are not considered Mr. Capato's children under applicable Florida intestacy law (which governs inheritance in the absence of a Will). The Third Circuit disagreed, finding that such a determination was unnecessary where the children were the undisputed biological children of Mr. Capato.¹ Because this conflicts with the recent holding of the Fourth Circuit in Schafer v. Astrue,² certiorari was sought.³

Section 402(d)(1) of the Act generally provides for the payment of survivor benefits to "every child" of an insured individual. Section 416(e) of the Act then defines "child" as "the child or legally adopted child of an individual" and, under certain conditions, also includes within the definition of "child" the stepchildren or grandchildren of an individual. Section 416(h)(2)(A) of the Act, in turn, provides that in determining whether someone is the "child" of an insured individual the intestacy laws of the state of the insured's domicile at death is to be applied.⁴

The district court in Capato found that state intestacy law was controlling in determining whether the twins were Mr. Capato's children for purposes of the Act. Finding that Mr. Capato was domiciled in Florida where the twins would not inherit under intestacy, the district court held that the twins were not eligible for social security survivor benefits. However, the Third Circuit disagreed and reversed, finding that the Capato twins were Mr. Capato's children under Sections 402(d) and 416(e) of the Act based on their undisputed biological relationship, thereby making it unnecessary to consider state intestacy law. The Supreme Court will now decide the issue.⁵

The majority of state intestacy laws do not specifically address the rights of posthumously conceived children. Without a doubt, "[d]eveloping reproductive technology has outpaced federal and state laws, which currently do not address directly the legal issues created by posthumous conception."⁶ Inheritance rights of children conceived posthumously need to be specifically addressed through proper estate planning.

Footnotes

1 Astrue v. Capato, 631 F.3d 626 (3rd Cir. 2011).

2 641 F.3d 49 (4th Cir. 2011).

3 The Eighth Circuit, in Beeler v. Astrue, 651 F.3d 954 (8th Cir. 2011), recently agreed with the Fourth Circuit, thus disagreeing with the Third Circuit's decision in Capato. The Third Circuit is in agreement with the decision of the Ninth Circuit in Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004).

4 The Act also lists three other ways (none of which are applicable to posthumously conceived children) in which an individual who does not qualify as a child under Section 416(h)(2)(A) of the Act may be deemed a child for purposes of claiming social security survivor benefits.

5 The requirement in the Act that the children were dependent or deemed dependent on the insured was not reached.

6 Gillett-Netting, 371 F.3d at 595.

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