In a unanimous opinion issued on Monday the US Supreme Court held that the question of whether a posthumously conceived child (a child who is conceived and born after a parent's death) is eligible for Social Security survivor benefits is to be determined by reference to applicable state intestacy law.1
The Court did not prohibit all posthumously conceived children from collecting Social Security survivor benefits. Rather, in denying such benefits to Robert Capato's twins, conceived 18 months after Mr. Capato's death via in vitro fertilization using Mr. Capato's frozen sperm, the Court held that biological parentage was not determinative and that the Social Security Administration's interpretation of the Social Security Act as requiring it to look to state intestacy law was entitled to deference.
Therefore, expect differing results depending on the domicile of the deceased parent. A handful of states have statutes permitting inheritance by posthumously conceived children under certain conditions, some states do not permit posthumously conceived children to inherit through intestacy and the majority of states have no clear law on the issue.
The estate planning issues relating to assisted and third-party reproduction go well beyond social security benefits. If you have clients, friends or family members utilizing reproductive technology it is essential that they have proper estate planning.
Footnotes
1 Astrue v. Capato, No. 11-159.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
