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Advancements in assisted reproductive technology have created a class of children that would have been unimaginable to prior generations: children both conceived and born after one, or maybe even both, of their genetic parents has died. Falling under the general umbrella term of “posthumous conception,” these children are the product of technological advancements dramatically extending the amount of time the average human has to reproduce. For example, live births have been reported using embryos frozen for over over 30 years.

Case Study

Astrue v. Capato ex rel. B.N.C., — S.Ct. —- 2012 WL 1810219 (U.S. May 21, 2012)

As technological advancements fundamentally redefine what it means to be an “afterborn heir,” courts find themselves grappling with the inheritance rights of posthumously conceived children. For example, courts have weighed in on several cases involving claims to federal Social Security Survivor benefits for posthumously conceived children. These case are determined by the child’s testamentary rights under state law. Capato is on such case, which turned on the question of whether a posthumously conceived child can inherit under Florida law as an intestate heir.

Under Florida law the only way a posthumously conceived child can in inherit from his or her parent’s estate is if the child has been provided for in the parent’s will; they’re categorically disqualified as intestate heirs. We get to this outcome based on two statutes. First, there’s F.S. 732.106, which tells us that afterborn intestate heirs only include children conceived prior to the parent’s death.

732.106 Afterborn heirs.—Heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent’s lifetime.

Second, there’s F.S. 742.17(4), which tells us that a posthumously conceived child may inherit from his or her parent if “the child has been provided for by the decedent’s will.”

742.17 Disposition of eggs, sperm, or preembryos; rights of inheritance. … (4) A child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or preembryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will.

By the way, note that the important demarcation point under F.S. 742.17(4) is not the date of “conception” (a slippery term given today’s technology), but is instead the date of “transfer” to a woman’s body of the decedent’s eggs, sperm, or preembryos. While the date of conception may be open to interpretation, the date of transfer is not. (Excellent statutory drafting.)

Here’s how the US Supreme Court ruled based on the above Florida law:

Karen Capato claimed survivors insurance benefits on behalf of the twins. The SSA denied her application, and the U. S. District Court for the District of New Jersey affirmed the agency’s decision. See App. to Pet. for Cert.33a (decision of the Administrative Law Judge); id., at 15a (District Court opinion). In accord with the SSA’s construction of the statute, the District Court  determined that the twins would qualify for benefits only if, as §416(h)(2)(A) specifies, they could inherit from the deceased wage earner under state  intestacy law. Robert Capato died domiciled in Florida, the court found. Under [Florida] law, the court noted, a child born posthumously may inherit through intestate succession only if conceived during the decedent’s lifetime. Id., at 27a–28a.FN1.

FN1. The District Court observed that Fla. Stat. Ann. §732.106 (West 2010) defines “‘after born heirs’” as “‘heirs of the decedent conceived before his or her death, but born thereafter.’” App. to Pet. for Cert. 27a (emphasis added by District Court).

For an excellent write up this case you’ll want to read the analysis posted by Prof. Jeff Pennell on the LISI network entitled Jeff Pennell on the Supreme Court Decision in Capato: An Update on the New Biology. Here’s an excerpt:

The unanimous Supreme Court opinion in Capato validates the government’s state law intestacy approach as being consistent with Congress’ intent that survivor benefits only assist children who lost their source of support due to the unanticipated death of a parent. According to the Court, if state intestacy law permits a child to inherit, “it may reasonably be thought that the child will more likely be dependent during the parent’s life” – which is a funny construct in the case of a posthumously conceived child, who could not possibly have been the decedent’s dependent during life. In a sense, the government’s approach, blessed by Capato, avoids the dependency issue entirely.

In doing so, however, Capato does little to alter the fact that the government’s approach yields different results under different state laws, because intestacy statutes differ. In Capato, the Court relied on Florida law, under which a posthumously conceived child can only inherit as provided in a decedent’s will – not by intestacy. But the Court acknowledged that intestacy determined by statute in other states would provide an inheritance to posthumously conceived children who are born or conceived within statutorily specified time limits. As such, the Court’s conclusion simply blesses the SSA approach of looking to state intestacy law as a valid and controlling regulatory approach, but it fails to establish a uniform national rule.