Social Security Benefits Denied Children Conceived After Death of Dad

By Harry S. Margolis

On Monday, the U.S. Supreme Court ruled in Astrue v. Capato that Mr. Capato’s twin girls conceived after he died using his frozen sperm are not entitled to Social Security survivor benefits.

When Robert Capato was diagnosed with cancer, he froze some of his sperm before he started treatment so that he and his wife could have the family they had planned.  Eighteen months after he died in Florida in 2002, his wife gave birth to twins using Mr. Capato’s frozen sperm.  Ordinarily, children of a deceased Social Security beneficiary would be entitled to survivor benefits under his work record.

The Supreme Court holding supports the Social Security Administration’s policy of following state inheritance law in these cases.  Under the Florida law applicable in this case, absent a will or trust to the contrary, Mr. Capato’s twins would not inherit his estate in this circumstance.  Had he lived in some other states, the results would have been different.

This raises the question of whether the result might have been different if Mrs. Capato had moved to one of the states with a more expansive inheritance law either before becoming pregnant with her husband’s frozen sperm or after conception, but before the birth of her daughters.

This may seem like a perverse result since it’s likely that Mr. Capato intended this result before storing his sperm.  Though perhaps he only wanted to make sure he could have children after cancer treatment if he survived. 

Further, if the law were different and Mr. Capato’s parents had left a trust for him and then his children, would they have wanted Mrs. Capato’s widow to create new beneficiaries after their son’s death.  Would the trustee be liable if it had already distributed the trust assets to Mr. Capato’s brother?

The new biology creates some interesting and challenging estate planning and public policy questions.

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