U.S. Supreme Court Holds That Posthumously Conceived Twins Were Not Entitled To Father’s Social Security Benefits
Last week the U.S. Supreme Court, in Astrue v. Capato (No. 11-159), held that Florida twins born as a result of in-vitro fertilization (“IVF”) using a deceased father’s genetic material were not entitled to receive his Social Security benefits. The respondent, Karen Capato, gave birth to the twins eighteen months after her husband, Robert Capato, had died of cancer. Karen applied to the Social Security Administration (the “SSA”) for Social Security survivors’ benefits for Robert’s biological twins but her application was denied. The Supreme Court, in a unanimous decision, agreed with the SSA’s decision to deny survivor benefits. The SSA’s decision was based on their reading of when the Social Security Act (the “Act”) would allow benefits for posthumously conceived children. According to their construction of the Act, a biological connection alone is not sufficient to enable the children to receive survivor benefits. Rather, the child would only be eligible for social security benefits if he or she would be entitled to inherit from the deceased under state intestacy laws. Under Florida law, the law where Robert was domiciled at his death, a child born posthumously may only inherit through intestate succession if he or she is conceived during the decedent’s lifetime. Consequently, the SSA concluded — and the Supreme Court agreed — that the twins were not entitled to receive survivor benefits.
What does this decision mean for couples in similar situations to Robert and Karen Capato? Indeed, there are many couples who pursue IVF. Some, like the Capatos, are taking steps to ensure they can have children after enduring cancer treatment or other treatments that affect fertility. Countless others pursue IVF for a variety of reasons. The end result is that many couples may be in a situation in which children are conceived using a donation from a genetic “parent” after that parent’s death.
The answer is that couples undergoing IVF, and the preparatory stages like egg or sperm preservation, should be aware of their state’s intestacy laws to understand what Social Security benefits (and other benefits) are available for any children born after the death of a parent. Under California intestacy law, a posthumously conceived child can inherit from a deceased parent if, among other things, the decedent authorized in writing the use of his or her genetic material for posthumous conception and the child is conceived and in utero within two years of the decedent’s death. Cal. Prob. Code. § 249.5.
The bigger takeaway from Capato, however, is the need to provide for these situations before a decedent’s death. Indeed, Robert Capato did not include the twins in his will nor did he otherwise provide for the twins despite having anticipated such a situation arising after his death. It is thus advisable to talk with an attorney when considering IVF to prevent the unfortunate situation suffered by Karen Capato.