Astrue v. Capato, 566 U.S. 541 (U.S. 2012).


Other Estate Planning Matters

Social Security Benefits for Posthumous Children


Wife used her deceased Husband’s frozen sperm to create two children through in vitro fertilization.  The children were born eighteen months after Husband’s death.  Wife then attempted to obtain Social Security survivors benefits for these children.


The Supreme Court of the United States focused on 42 U.S.C. § 416(h)(2)(A) which states that the determination of whether a person is a child for survivors benefits purposes depends on whether that person would be an heir under the intestacy law of the deceased parent’s domiciliary state.  Under the applicable law (Florida), a child must be conceived before the decedent’s death to be an heir.


Thus, the Court held in a unanimous opinion that these two children did not qualify for survivors benefits as conception occurred after Husband’s death.


Query:  What would happen if instead of frozen sperm, Wife had used frozen embryos?  Then, she could argue that conception occurred prior to Husband’s death.


Texas:  Probate Code § 41(a) allows posthumous lineal descendants to qualify as heirs.  There is no express requirement of conception prior to a parent’s death.  Note, however, that when this statute was originally enacted, the possibility of post-death conception did not exist.


Moral:  A posthumously conceived child of a Texas domiciliary has a good chance of qualifying for Social Security survivors benefits.