Is child conceived after father’s death eligible for social security survivor benefits?

by Atty. Emmanuel Samonte Tipon 

Whether a child conceived after the death of the biological father is eligible to receive survivor benefits under the Social Security Act is a matter of geography. That, in effect, is what the U.S. Supreme Court said in today’s (May 21) decision in Astrue v. Capato, No. 11-159, 05/21/12.

Shortly after they were married in New Jersey in 1999, Robert and Karen were told that Robert had cancer. His doctor told him that if he underwent chemotherapy treatment he would not be able to procreate. Because he wanted to have children someday, Robert deposited his sperm at a sperm bank for later use through in vitro fertilization. The couple had a child by natural means before Robert’s cancer worsened. In his will, Robert made provisions for his child with Karen and his two children from a previous marriage. However, he did not make provision for unborn children who might be conceived through in vitro fertilization after he died. Robert passed away in March 2002 while living in Florida. Karen moved back to New Jersey. She underwent in vitro fertilization using the frozen sperm of Robert. On September 23, 2003, 18 months after Robert died, she gave birth to twins.

STATE INTESTACY LAW GOVERNS ENTITLEMENT TO BENEFITS

Karen applied for social security survivor benefits for the twins. The Social Security Administration (SSA) denied her application. She went to U.S. District Court in New Jersey which affirmed the SSA’s decision. The District Court held that the twins could qualify for benefits only if they could inherit from their father, the deceased wage earner, under the state intestacy law as provided by 42 U.S.C. Section 416(h)(2)(A). The court found that Robert was domiciled in Florida when he died, and that under Florida law, posthumously conceived children do not qualify for inheritance through intestate succession.

DEFINITION OF “CHILD” IN FEDERAL LAW GOVERNS ENTITLEMENT TO BENEFITS

Karen appealed to the Third Circuit Court of Appeals which reversed the District Court. The appellate court held that under 42 U.S.C. Section 416(e) which defines “child” to mean, inter alia, “the child or legally adopted child of an [insured] individual,” the biological children of an insured and his widow qualify for survivors benefits without regard to state intestacy laws. Capato v. Commissioner, 31 F.3d 626 (3d Cir. 2011).

SUPREME COURT SAYS STATE INTESTACY LAW GOVERNS

In a rare show of unanimity, the Supreme Court reversed the appeals court. Speaking through Justice Ginsburg, the court held that the Social Security Act, 42 U.S.C. Section 416(h)(2)(A), provides that “In determining whether an applicant is the child or parent of [an] insured individual, . . . the Commissioner of Social Security shall apply [the intestacy law of the insured individual’s domiciliary state].”  The court explained that the Act’s objective is to “provide . . . dependent members of [a wage earner’s] family with protection against the hardship occasioned by [the] loss of the [insured’s] earnings.”

The court rejected Karen’s contention that this interpretation of the statute raises concerns under the equal protection clause of the Constitution, saying that the statute passed the rational basis test.

COMMENT:  This is not an isolated case. Many service members deposit their sperm in a sperm bank before being deployed for future use in case they are disabled or die. The Supreme Court took this case because the various Circuit Courts of Appeals were divided on the issue, with the Third and Ninth Circuit (covering California and most of the western states) holding that posthumously conceived children may be eligible for survivor benefits under certain circumstances. Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004)(applying Arizona law). However, other circuits like the Fourth held that they were not. Schafer v. Astrue, 641 F.3d 49 (4th Cir. 2011).

RECOMMENDATION:  To insure equal protection of the laws, Congress should quickly enact a law providing for a single rule in determining entitlement to social security survivor benefits rather than leaving such determination to the varying state laws.


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)