Is a Posthumous Child a Survivor for Benefit Purposes?

This case will have a huge impact on Estate Planning and Family Planning alike. At issue in the case before the U.E. Supreme Court is what the term "surviving child" really means in determining eligibility for Social Security Survivor benefits.

While I previously told you about the benefits of having "surviving child(ren)" language in your will or trust, it seems that until the law catches up with reproductive technology, that language alone may not be sufficient.

The Supreme Court heard oral arguments this Monday on a case dealing with the new legal issues that reproductive technology can create. A father had his sperm frozen when he was initially diagnosed with cancer, and after he died, the mother went forward with in vitro fertilization treatments to conceive further children. When she applied for social security survivor benefits for these subsequent children, she was denied.

The Social Security Administration says that it determines eligibility based on the inheritance laws of each state, and in Florida, where the couple lived, children conceived after the death of a parent cannot inherit property, unless specifically provided for in a will.

The government argues that it does not have to pay benefits because,  "[the children] were brought into being by a surviving parent with the knowledge that the deceased biological parent will not be able to contribute wages for their support." Thus, the argument goes, the entire point of having the social security safety net is circumvented when people are purposely conceiving children when they know that the other parent will not be around to earn wages.

State Posthumous Children Laws

Here is a link to a great document which contains the laws regarding such "posthumous" children, and how they are treated under various state laws. Unsurprisingly, states run the full spectrum on this issue. While some have no explicit statute in place, others require something in the will, or that the child was already in gestation at the time of the decedent's death or something along those lines.

Maine, Maryland, New York, Oregon, Tennessee, and Wisconsin, for example, state that, "In order inherit, child must have been conceived prior to death of parent." Unless the states further define what conceived means, there is certainly the potential argument that frozen embryos were "conceived" prior to death. This perhaps explains the use of the word gestation in other statutes, which suggests that the life in being was already implanted at the time of the decedent's death. The language is not exact in what it is trying to achieve.

California's law is probably the most in depth, stating:

A posthumous child may inherit if: (1) the decedent consented in writing to be treated as a parent; (2) if the decedent designated an agent; (3) the decedent’s designated agent gives notice to the person with the power to control the distribution of the estate within 4 months of his death that the decedent’s genetic material is available; and (4) a child is conceived within 2 years after the decedent’s death.

Thus, even in the most "generous" statute, which allows for potential posthumous children to continue for a while after the decedent dies, it even contains a 2 year limitation for conception, and fairly stringent requirements.

It will be interesting to see how the Court rules.

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