Estate Planning Family Law Legal Topics

Short Circuit on Social Security for Posthumously Conceived Children

Update May 22, 2012: The U.S. Supreme Court has held that posthumously conceived children are not automatically entitled to receive social security survivor benefits. Astrue v Capato (May 21, 2012, No. 11-159). From now on, the availability of survivor benefits will depend on state statutes and case law in jurisdictions with no statutes. See Knaplund, The New Biology: What Do Estate Planners Need to Know About Assisted Reproduction?, Estate Planning 2011, chap 3.

The brave new world is here, and has raised a legal issue few saw coming: Should posthumously conceived children — meaning those conceived through in vitro fertilization after the biological parent has died — be eligible for Social Security survivor benefits even if they could not inherit from the parent under state law? There’s now a split of authority on this issue, with the Ninth Circuit having held that they may be eligible, and a divided panel of the Fourth Circuit recently ruling that they are not. Schafer v Astrue (4th Cir 2011) 641 F3d 49. Onward to the Supreme Court!

In the Fourth Circuit case, the child in question was born 7 years after the death of the father, who was domiciled in Virginia at the time of his death. Virginia law does not recognize any “child born more than ten months after the death of a parent” as that parent’s child for intestacy purposes. The Social Security Administration (SSA) has taken the view that posthumously conceived children can qualify as “children” only through the state law intestacy provision in 42 USC §416(h)(2)(A).

In a lengthy opinion that reads as a template for review by the U.S. Supreme Court, the majority concluded that the SSA’s interpretation of the statute was reasonable and entitled to deference.

But this conflicts with the Ninth Circuit’s holding that posthumously conceived children may be entitled to Social Security survivor benefits—even if they could not inherit from the father by intestate succession—if they can prove that the father affirmatively consented to posthumous conception and to the support of any resulting children. See Gillett-Netting v Barnhart (9th Cir 2004) 371 F3d 593 (Arizona law). And it’s this holding that the SSA has announced it will apply at all levels of administrative review to claims involving an insured who was domiciled within the states encompassed by the Ninth Circuit. SSAR 05–1(9), 70 Fed Reg 55656 (Sept. 22, 2005).

California law requires the decedent’s consent as well. Under Prob C §249.5, for purposes of intestacy, a parent-child relationship in posthumous conception cases may be established if

  • The decedent states in writing that his or her genetic material can be used for posthumous conception;
  • A person is designated in writing to control the use of the genetic material,
  • Specified postdeath notices were given, and
  • The child was in vitro within 2 years after issuance of the decedent’s death certificate.

This statute was applied in Vernoff v Astrue (9th Cir 2009) 568 F3d 1102, in which the court found that a posthumously conceived child was not entitled to Social Security survivor benefits as a presumed natural child of the deceased father under Fam C §7611(f) or any other statute because the deceased father, who died of accidental causes, did not knowingly donate his sperm and did not consent to its use.

This California law is important because, if the Supreme Court sides with the Fourth Circuit in Schafer, social security will then be limited by all the requirements of California law (i.e., by the 2-year limit).

But maybe the Supreme Court will uphold the Ninth Circuit’s decision in Gillett-Netting, which was followed by the Third Circuit (Capato v Commissioner (3d Cir 2011) 631 F3d 626). Perhaps the Fourth Circuit’s decision will simply be an outlier. We’ll have to wait and see.

For a general discussion of the Uniform Parentage Act (UPA) (Fam C §§7600–7730), turn to CEB’s Practice Under the California Family Code: Dissolution, Legal Separation, Nullity, chapter 8A. Also check out CEB’s California Will Drafting §§10.9–10.9B, 12.29–12.29C.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

4 replies on “Short Circuit on Social Security for Posthumously Conceived Children”

It will be interesting to see what happens now with the 8th Circuit
agreeing with the 4th Circuit in Monday’s decision in Beeler vs. Astrue
and denying social security benefits to the posthumously conceived
child of Patti Beeler and her late husband. It is so important for people
trying to conceive through the use of banked genetic material to
document their wishes and to have proper estate planning in place.

This is a difficult question. On the one hand, there should be recognized as part of the fundamental right of every person to procreate, the right to extend recognition and benefits to one’s progeny, even if born after the person dies. On the other hand, at some point, there needs to be some certainty as to who are a person’s heirs and beneficiaries. With the ability to freeze gametes and embyros, it is possible that one’s offspring could be gestated and born many years after the death of the parent. The process of orderly succession of estates and rights of heirs and beneficiaries requires that some consistent set of rules be adopted to make predictability of outcome possible.

Here’s the docket on Capato v Commissioner (3d Cir 2011) 631 F3d 626, which raises the same issue:

No. 11-159

Michael J. Astrue, Commissioner of Social Security, Petitioner


Karen K. Capato, on Behalf of B. N. C., et al.

August 9, 2011

Linked with 10A1165

Lower Ct:
United States Court of Appeals for the Third Circuit

Case Nos.:

Decision Date:
January 4, 2011

Rehearing Denied:
March 9, 2011

~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~

May 27 2011
Application (10A1165) to extend the time to file a petition for a writ of certiorari from June 7, 2011 to July 7, 2011, submitted to Justice Alito.

May 27 2011
Application (10A1165) granted by Justice Alito extending the time to file until July 7, 2011.

Jun 27 2011
Application (10A1165) to extend further the time to file a petition for a writ of certiorari from July 7, 2011 to August 6, 2011, submitted to Justice Alito.

Jun 30 2011
Application (10A1165) granted by Justice Alito extending the time to file until August 8, 2011.

Aug 8 2011
Petition for a writ of certiorari filed. (Response due September 8, 2011)

Sep 2 2011
Order extending time to file response to petition to and including October 11, 2011.

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