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...