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The KRASA LAW, Inc. Estate Planning Blog

Friday, July 10, 2015

Life After Death: Posthumously Conceived Children and Survivor Benefits

Often, surviving spouses and children of a decedent are entitled to certain Social Security and other benefits.  Similarly, if a child was conceived during the decedent’s lifetime but born after the parent’s death, such children will often still be considered children of the decedent and likewise entitled to certain Social Security benefits.  

However, science is often one step ahead of the law and modern technology introduced a new concept that challenged courts, attorneys, and legislatures for years: posthumously conceived children.  If a decedent’s genetic material is used to conceive children after the decedent’s death, do such posthumously conceived children have a right to survivor benefits?

That very question ended up in the United States Supreme Court in a 2012 case, Astrue v. Capato.  A married couple wanted to have children but the husband discovered that he had cancer.  Fearing that chemotherapy would make him sterile, he had some of his sperm frozen.  After his death, his widow used the frozen sperm to give birth to twins.  After their births, the widow filed for Social Security dependents’ benefits on their behalf.  The Social Security Administration denied the benefits due to the fact that under their state’s law (Florida), posthumously conceived children are not considered children of a decedent for inheritance purposes.  The U.S. Supreme Court held that determination for federal survivor’s benefits for posthumously conceived children will depend upon the law of the state where the decedent was domiciled.  

Using state law to determine whether posthumously conceived children are entitled to federal survivor benefits means that there will be different results in different states.  The U.S. Supreme Court’s opinion affirms the conclusions of a federal appellate court that ruled in favor Social Security benefits for posthumously conceived children in Arizona but declined Social Security benefits for posthumously conceived children in California.

In the Federal Ninth Circuit Court of Appeals case of Gillett-Netting v. Barhart from 2004, a married couple from Arizona planned on having children.  Similar to the Astrue v. Capato case above, the husband was diagnosed with cancer and decided to freeze his sperm prior to undergoing chemotherapy.  He confirmed that he wanted his wife to have a child with his frozen sperm after his death.  Several months after the husband’s death, the wife became pregnant through in vitro fertilization and later gave birth to twins.  

The wife filed for Social Security dependents’ benefits.  Although the Social Security Administration denied the claim, she successfully appealed the decision to the Ninth Circuit which concluded that, under Arizona law, the twins were considered the children of the decedent despite the posthumous conception.  

A few years later, a similar case again came before the same Federal Ninth Circuit Court of Appeals.  In Vernoff v. Astrue from 2009, a California man died from an apparent drug overdose.  After his death, his wife arranged to have five vials of her husband’s sperm extracted from his body and later underwent an in vitro fertilization procedure.  She later gave birth to a baby girl.  When she filed for Social Security dependents’ survivor’s benefits for her daughter, the Social Security Administration denied the claim.  On appeal, the Ninth Circuit this time ruled against the posthumously conceived child from being entitled to receiving Social Security benefits due to California laws defining children of a decedent.

Under California law, posthumously conceived children are only considered children of a decedent for inheritance purposes if, prior to the decedent’s death, the decedent specifies in writing that his or her genetic material shall be used for the posthumous conception of a child.  Since the husband never signed such a writing, the posthumously conceived daughter was not considered his child under California law.  As a result, the Ninth Circuit held that she was not entitled to Social Security benefits.

If you have genetic material saved that could be used to conceive children posthumously, it is of paramount importance to learn your state’s rules with regard to this subject.  It is equally important to execute a written document in compliance with your state’s laws that clearly outlines your intent with regard to posthumously conceived children.

KRASA LAW, Inc. is located at 704-D Forest Avenue, Pacific Grove, California and Kyle may be reached at 831-920-0205831-920-0205.

Disclaimer: This article is for general information purposes only.  Reading this article does not establish an attorney/client relationship.  Before acting on any of the information presented in this article, you should consult an attorney who is licensed to practice law in your community.   


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KRASA LAW assists clients with Estate Planning, Elder Law, Pet Trusts, Asset Protection, Special Needs Planning and Probate / Estate Administration in Pacific Grove, CA(93950), Monterey (93944, 93940, 93943, 93942), Salinas (93901, 93905, 93906, 93907), Hollister (95023,95023) Pebble Beach (93953), Carmel By The Sea (93921), Seaside (93955) and Carmel (93923, 93922) in Monterey County and San Benito California.

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