Supreme Court Decision on Post-Humously Conceived Children

May 28, 2012

A U. S. Supreme Court decision this week denied a Florida mother survivor benefits for twins conceived by in-vitro fertilization (IVF) after her husband died.  The court held unanimously that Karen Capato could not collect survivor benefits for the twins from the Social Security Administration (SSA).  She had the twins 18 months after her husband died, using his frozen sperm.

SSA turned the application down because Capato’s twins, who were conceived posthumously, did not qualify to inherit from their late father under Florida law.  The court states that SSA properly looked to state law to determine the children’s eligibility for the federal entitlement.  It is a growing phenomenon for persons with life-threatening illnesses or hazardous job duties (like soldiers headed into combat) to store sperm or, in some cases, embryos for later use.  The decision was limited to how the law applies in Florida; in other states, this situation may have had a different result, depending on the state laws of inheritance.

As a reminder, if you have a child whose other parent died while insured for Social Security benefits, that child is likely eligible for survivor benefits on the deceased parent’s record up to age 18, or age 19 if the child is still in high school.

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