Law Office of John S. Palmer Attorney at Law

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Inheritance Rights of Posthumously Conceived Children

Posted Wednesday, June 27, 2012 by John S. Palmer

Whether a child conceived after the father’s death by in vitro fertilization may inherit from the father’s estate or receive social security survivor benefits on account of the father’s death depends on the law of the state with jurisdiction over the father’s estate.

Washington law provides that “a child conceived prior to the death of a parent but born after the death of the deceased parent is considered to be the surviving issue of the deceased parent” for inheritance purposes. However, other states grant inheritance rights to posthumously conceived children. For example, California allows a child who is in utero within 2 years of a father’s death to inherit from the father’s estate; Colorado and North Dakota grant such rights to children in utero within 3 years or born within 45 months of the father’s death.

The U.S. Supreme Court recently held that a posthumously conceived child is entitled to social security survivor benefits only if that child was granted inheritance rights under state law. In Astrue v. Capato (decided May 21, 2012), Karen Capato conceived twins through in vitro fertilization after her husband Robert died. Prior to his death, the Capatos were warned that chemotherapy could render Robert sterile, so a sample of his semen was cryogenically frozen for future use. After the twins were born, Karen applied for social security survivor benefits on their behalf.

The Social Security Administration denied the application on the grounds that both the statute and the regulations governing survivor’s benefits make such benefits available to biological children of a decedent only if they are entitled to inherit from the decedent under the applicable state law. The Capatos lived in Florida, which like Washington, requires a child to be conceived during the father’s lifetime in order to be eligible to inherit from him.

The Supreme Court agreed; in doing so, it rejected Karen’s argument that consulting state intestacy law is only required if the paternity of the child is in doubt.

Although this will mean some posthumously-conceived children will be entitled to benefits and others will not, the court found that deciding eligibility based on state law meets the Social Security Act’s purpose of providing support to those who had been dependent on the decedent for support. The court reasoned that where state intestacy laws provide that a child may inherit from a father’s estate, there is a greater likelihood that the child had been dependent on the father for support and therefore should be entitled to benefits. The court said that relying on state intestacy laws is a “workable substitute for burdensome case-by-case determinations whether the child was, in fact, dependent on her father’s earnings.”

Until the law catches up with science, there is not much that parents considering in vitro fertilization can do to ensure that any children born after the father’s death will receive social security benefits, short of moving to another state with a favorable intestacy statute.

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