Providing For After-Born Children: Along With Advances in Science Comes Clarification in Laws

In Wisconsin, as in many other states, offspring conceived at the time of a parent’s death, subsequently born alive, and surviving for at least 120 hours past birth, are included in Wisconsin’s definition of “issue” and “children” for purposes of intestate succession. That definition of “issue” and “children:, however, does not extend to individuals conceived after the death of a biological parent in many states.

In a 2012 case before the United States Supreme Court, the Court reviewed the Social Security Administration guideline that looks to state intestacy laws to determine the eligibility of such a child for Social Security survivor benefits. In Astrue v. Capato, the Court concluded that the Social Security Administration’s denial of survivor benefits to twin girls born eighteen months after their biological father’s death was not improper. The specific issue before the Supreme Court in Capato was whether a child conceived after the death of a biological parent is eligible to receive Social Security survivor benefits where the child is not eligible to inherit from the deceased parent under the state’s intestacy laws.

Eighteen months after Nick Capato’s death in 2002, his widow produced twin daughters through in vitro fertilization using her husband’s sperm. In his will, executed three months prior to his death, Nick Capato expressly provided for his son with his wife as well as two older children from a previous marriage. The will was silent, however, on the inclusion of children conceived and born after his death. After the twins were born, Mrs. Capato claimed Social Security Survivor benefits on behalf of the twins. The Social Security Administration denied her request, and a district court subsequently agreed with the government’s position. The United States Court of Appeals for the Third Circuit, however, reversed and ruled the plain language of the Social Security Act entitles the Capato twins to survivor benefits. On May 21, 2012, the United States Supreme Court issued an opinion unanimously reversing the decision of the United States Court of Appeals for the Third Circuit, concluding that state intestacy laws control the determination of posthumous survivor benefits.

The Capato decision does not go so far as to uniformly conclude that posthumously conceived children cannot inherit nor qualify for Social Security survivor benefits. With ongoing advances in modern science, however, it is likely we will see those questions and similar issues surface in the future.