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Should Posthumously Conceived Children Get Survivor Benefits?

By Stephanie Rabiner, Esq. | Last updated on

Old law and new technology are heading to the Supreme Court sometime soon, and family law and estate planning attorneys might be interested.

The Court has agreed to hear Astrue v. Capato, which asks whether posthumously conceived children should receive survivor benefits under the Social Security Act.

More specifically, the Court will determine whether such children are eligible for survivor benefits even when they cannot collect under the state's intestacy law.

It turns out that the Social Security Administration has received over 100 applications on behalf of posthumously conceived children. Like Capato, a number of these cases involve fathers diagnosed with cancer. After their husbands' deaths, wives underwent in vitro fertilization with the frozen sperm, producing biological children.

In Capato, the 3rd Circuit found that the children met the statute's definition of "child" because they were biological. However, the SSA asserts that eligibility depends on whether the state would allow a posthumously conceived child to inherit under its intestacy statute.

The 8th Circuit saw a similar case in August, and the 9th Circuit dealt with the issue in 2004.

In vitro fertilization and posthumously conceived children seem to be creating an entirely new area of law. Couples can't rely on survivor benefits, and therefore must work with an attorney to plan for the child's future. Attorneys will need to develop creative ways to provide for those future children while simultaneously providing for those who already exist.

Should assets be withheld from heirs? Or should they be put into a trust? And what about timeframes? How long does a spouse have to use the saved biological material? Will that impact planning?

Posthumously conceived children are about to have their day in court, and you should consider being prepared.

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