Who is a “Child” Under the Social Security Act?
In a case of first impression, the Third Circuit Court of Appeals considered the rights of posthumously conceived twins, born to a deceased wage earner and his widow, who were denied child survivor benefits under the Social Security Act. Karen K. Capato, o/b/o B.N.C., K.N.C. v. Commissioner of Social Security (3rd Cir. 1/4/2011), Case No. 10-2027.
The facts of the case are similar to a case decided in the Ninth Circuit Court of Appeals in 2004 in Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir, 2004) and worth a short discussion. In Capato, the decedent was diagnosed with terminal cancer and advised that the treatment protocol could render him sterile. As the couple wanted children, and prior to undergoing chemotherapy, the decedent deposited semen in a sperm bank where it was frozen and stored. Although he began undergoing treatment, the widow conceived naturally and bore a son. However, the couple wanted their son to have a sibling. The decedent’s health deteriorated, and he died before his surviving spouse began undergoing in vitro fertilization of her husband’s frozen sperm.
To complicate matters further, prior to his death, the decedent executed a will naming his two children of a prior marriage and the son born of his current marriage, but the will as executed did not include after-born children.
Eighteen months after his death, the surviving spouse gave birth to twins. The following month, she applied for child survivor benefits on behalf of the twins, based on the earnings of the twins’ deceased father. The Social Security Administration denied the claim, and the widow appealed. Following denial at an administrative hearing, the widow appealed to the District Court which upheld the findings of the Administrative Law Judge that “the twins, conceived after the death of their father, are not for Social Security purposes the child(ren) of the deceased wage earner….”
The obvious question, which the Third Circuit answered in the affirmative as had the Ninth Circuit in the earlier Gillett-Netting case, was whether the twins were the biological children of the deceased wage earner (Section 416(e) of the Social Security Act). The Court of Appeals remanded the case to the District Court for a determination of whether, as of the date of decedent’s death, the children were dependent or deemed dependent upon him, the final requisite for entitlement under the Act.
Special thanks to Jim Hillhouse (WealthCounsel) for bringing this to my attention.