It is long-settled that children conceived during life, but born posthumously, can inherit from their parent and can receive other benefits. But, can children conceived after death get benefits from a deceased parent’s Social Security account?

The short answer to this question, thanks to the Supreme Court’s recent unanimous decision, is – maybe. It depends on the existing intestacy laws in each state. The key factor is the state of residency of the deceased parent when they died. This case clarifies what happens with legal rights of children conceived after death, which I discussed in a prior blog.

Robert Caputo was diagnosed with esophageal cancer, which prompted the couple to cryovac his semen, as they wanted more children. Karen Caputo bore twins 18 months after the death of her husband, conceived via in vitro fertilization, using his frozen sperm. After the birth of the twins, Karen applied for Social Security survivor’s benefits on their behalf and was denied. When the case was brought in federal District court, it agreed with the SSA and found the children would only qualify if they stood to inherit from their parent according to state intestacy law.

At the time of his death, Robert lived in Florida. In that state, children conceived posthumously do not qualify for inheritance through intestate succession. The District court decision was reversed on appeal to the Third Circuit. The Court of Appeals found that the undisputed biological child(ren) of an insured qualify for Social Security survivor’s benefits without taking state intestacy laws into consideration. On appeal to the Supreme Court, the justices stated that while the Social Security Act could be interpreted to mean only those supported by the deceased in their lifetime, there were other reasonable constructions, on a state by state basis and interpretation of existing intestacy laws.

The Social Security Administration had longstanding regulations and rules that led them to interpret the law the way they did in the Caputo case. Since their interpretation was not contrary to the statute, it was entitled to deference. Ultimately, the court reversed and remanded this case.

If posthumously conceived children could draw on a deceased parent’s account, Social Security might have new claimants years and years after the original worker’s death. It is likely the impracticality of that result and the practicality of cutting off posthumously conceived heirs entered into Justice Ginsburg’s opinion for the court.

If you are interested in reading the whole case, you might want to check this link: http://www.supremecourt.gov/opinions/11pdf/11-159.pdf

Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555
www.aaepa.com