Supreme Court Attempts to Conceive of Post-Death Inheritance

Sorry for the brief interruption in my series on what a Trustee does.

With wills being drafted as early as the Roman Empire and trusts arising during the time of the Middle Ages as knights looked to protect their property when going off to the Holy Land to crusade, there are not many “groundbreaking” legal disputes that reach to the level of the Supreme Court.

But, on March 19, 2012 the Supreme Court heard arguments on whether children conceived after their father died are entitled to Social Security survivor benefits.

The facts of the case are pretty innocuous. Robert and Karen Capato’s had twins born in 2003. The problem – the twins were born eighteen months after the death of Robert.  Sometime in 1999, Robert was diagnosed with esophageal cancer. Because the couple feared that his treatments might leave him sterile, Robert Capato began depositing sperm at a sperm bank in Florida.  Apparently, the impact of his cancer treatment subsided to the point the Karen gave birth to a naturally conceived son in 2001.

Unfortunately, his condition took a turn for the worse and he passed away in March 2002. Prior to his passing, the couple desired that their son should have siblings.  They made the decision to use in vitro fertilization (“IVF”) with Robert’s stored sperm.

On the estate planning side, the couple had a notarized statement executed stating that any children “born to us, who were conceived by the use of our embryos” shall in all aspects be their children and entitled to their property. However, Robert did not address the issue in his will.

So, eighteen months after Robert’s passing, Karen gave birth to a set of twins. Karen applied for Social Security survivor benefits for all the children.  The naturally conceived son was awarded benefits; the twins were not.

Since 1939, the Social Security Act has offered benefits to the survivors of a deceased wage earner, including dependent children.  Not surprising, the 1939 law did not address children born through the use of technology developed 50 years in the future – IVF – allowing for a dead man to impregnate his surviving wife.

Thus, an administrative law judge (“ALJ”) ruled based on the 1939 federal law that required the Social Security Commission to look to the state laws of the benefit seeker to determine whether the benefit seeker is eligible to inherit property. Under Florida law, the twins are not eligible.

An appeals court reversed the ALJ’s decision on another part of the 1939 law that defined an eligible child simply as “the child or legally adopted child of an individual.” However, another provision in the law says a surviving child is one who is “dependent on the deceased wage earner at the time of death.” Since the twins were not yet conceived, the Commission argued before the Supreme Court, they could not have been dependents at the time of his death.

Other appeals courts have found just the opposite decision as what the Capato’s appeal court ruled; supporting the ALJ that the state laws are the places to look for determination of eligibility. With several appeals courts having contradictory rulings, the matter was ripe for the Supreme Court to address the issue.

Typical to a Supreme Court argument, many of the Justices posed numerous hypotheticals to the sparring lawyers including:

  • From Justice Sotomayor – “Let’s assume Ms. Capato remarried but used her deceased husband’s sperm to birth two children . . . Would they qualify for survivor benefits even though she is now remarried?”
  • From Justice Sotomayor  – “What happens if the decedent is the mother?”
  • From Justice Sotomayor –  “Does marriage matter only if it’s the father?”
  • From Justice Sotomayor – “What if you are a sperm donor? Does any offspring that sperm donor have qualify?”
  • From Justice Roberts – “What if, the Capato twins were conceived four years after the death in this case? Would your argument be the same?”
  • From Justice Ginsburg – would people in 1939 “understood that the marriage ends when a parent dies.”
  • From Justice Scalia – “What is at issue here is not whether children born through artificial insemination get benefits. It’s whether children who are born after the father’s death get benefits,”

Complicating this situation is the fact IVF is a growing phenomenon.  As pricing has come down, more Americans have the means to go through this process.  Further, based on the ruling, U.S. servicemen that go overseas into a war zone that have used sperm banks before deploying to procreate later might not get the correct level of benefits for any serviceman’s post-conceived child.

Needless to say a legal system designed in the 18th century trying to interpret a law from the 20th century addressing technology created in the 21st century is struggling with the right answer. There is also the added weight of questions attempting to resolve federal vs. state powers.

Justice Kagan summed up the issue confronting the legal and benefit community best by saying “It’s a mess.”

A decision will be out in a few months and I will keep you posted.


About Chris Guest

I am a trust and estate planning attorney working in the Washington, DC metro area. I offer comprehensive estate planning, trust administration, probate services and general business counseling for accountants, attorneys, business owners, consultants, federal and local government employees, retirees, other business professionals and other individuals.
This entry was posted in Post Death Planning, Supreme Court, Survivor Benefits, Uncategorized, Wills. Bookmark the permalink.

2 Responses to Supreme Court Attempts to Conceive of Post-Death Inheritance

  1. Pingback: Supreme Court Rules Post-Death Conceived Beneficiaries Not Entitled to Social Security Benefits | VA Estate Planner

  2. Pingback: What is a Pretermitted or Omitted Child? | VA Estate Planner

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