Supreme Court to Decide on Posthumous Conception

Robert and Karen Capato found out shortly after their marriage that Robert had esophageal cancer. Chemotherapy had potential to render him sterile, so Robert deposited some of his sperm into a sperm bank in case he did become sterile. In 2001, Robert and Karen were able to naturally conceive a son. One year later, in 2002, Robert passed away. Karen used in vitro fertilization after Robert’s death with the sperm he had frozen at the sperm bank and she conceived a child in January 2003, and then twins in September 2003, nine months and eighteen months respectively after Robert’s death.  In October 2003, Karen applied for surviving child’s insurance for the twins based on Robert’s earning capacity, but the Social Security Administration denied the application. Karen appealed that denial.

Under Social Security Act (SSA) Section 402(d), if the twins are found to be Robert’s children and if they were dependent on him at the time of his death, they qualify for surviving child’s insurance. Under section 416(h) of the SSA, state intestacy law figures into determining whether an applicant is a child of the deceased. Robert was a resident of Florida at the time of his death, so Florida intestacy law would be applied. Under Florida’s intestacy law, a child has to be conceived before the parent’s death to be treated as an heir in the intestate succession scheme.   

The U.S. Court of Appeals for the Third Circuit determined that the twins are Mr. Capato’s children, but they did not find that the children met the requirement that they were dependent on Robert at the time of his death. The case is now before the U.S. Supreme Court to decide whether the twins can receive the surviving child’s insurance.

The Uniform Parentage Act Section 707 indicates that a decedent is not a parent of a resulting child when their genetic material is used in conception after their death unless the parent expressly consented to be the parent of the child. While this approach may go against logic and morals in some situations, it is in place to avoid administrative problems that posthumous children can potentially create long after the decedent’s death. Anyone is free to provide for a posthumous child in a will, but otherwise, intestate rules are the default, and posthumous children can create unworkable issues in intestate administration.

See John T. Brooks, Posthumous Conception: Capato v. Astrue Puts This Issue on the U.S. Supreme Court’s Calendar, Trusts & Estates, Feb. 29, 2012.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.