Should Children Conceived After A Parent’s Death Collect Social Security? U.S. Supreme Court Says State Legislatures May Decide

If a proposed bill granting inheritance rights to children conceived after a parent’s death crosses your desk you might reasonably wonder who exactly this law is intended to benefit and why it is being proposed now.  The simple answer probably is the proposed law is intended to grant children conceived by in vitro fertilization after a parent dies social security benefits.  It is likely being proposed now in response to a recent a U.S. Supreme Court decision Astrue v. Capato.

In this case the Supreme Court unanimously held that children conceived after their parent’s death may only receive Social Security survivor benefits if they qualify to inherit from their deceased parent under state intestacy law.  Karen Capato’s twins were born 18 months after her husband died of cancer with the help of in vitro fertilization using her husband’s frozen sperm.  After her application for Social Security survivor benefits for the twins was denied she sued. 

Capato argued that the Social Security Act’s initial definition of “child,” “child of an [insured] individual,” applies to her children.  She claimed that a later section of the Social Security Act entitled “determination of family status,” which allows biological children to receive benefits only if they qualify for inheritance from their deceased parent under state law, does not apply to “the biological child of a married couple” because such a child’s family status does not need to be determined.  The Court rejected this argument noting that Capato’s children might not be “the biological child[ren] of a married couple” because in Florida a marriage ends with a death of a spouse.  The Court also noted that the aim of the Social Security Act is to provide benefits to those dependent on a wage earners support; if a child is eligible to inherit from a parent per state intestacy law he or she is likely dependent on that parent.  

The Court pointed out that some states (California, Colorado, Iowa, Louisiana, and North Dakota) grant inheritance rights to children conceived posthumously while a number of states including Florida do not (New York, Georgia, Idaho, Minnesota, South Carolina, and South Dakota). Legislation may be proposed in your state granting or denying inheritance rights to children conceived posthumously depending on whether the legislation’s supporters want to grant or deny Social Security survivor benefits to such children.