As technology continues to develop, its impact is seen in many areas of law. In today’s world, natural conception is not the only way to conceive a child. Often times, a parent may choose to have a child through in-vitro fertilization, even after their significant other has passed. However, under common law, a posthumously-conceived child (a child conceived after the death of the father) is always considered a non-marital child because marriage ends at the death of one of the partners. Specifically, under Florida law, “a child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or pre-embryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will.” Fla. Stat. § 742.17. This statute means that a posthumously-conceived child may not state a claim against his father’s estate, unless that child is deliberately named in the father’s will.
In a recent United States Supreme Court opinion, Astrue v. Capato, a mother conceived and gave birth to twins after the father had passed away from esophageal cancer. The Capatos naturally conceived one son, but the couple wanted that son to have siblings. Before Mr. Capato entered chemotherapy, he had his semen frozen because the doctors explained that the chemotherapy could force him to become infertile. A few months before he died, Mr. Capato executed a will that named the son he had with Ms. Capato and two children from a previous marriage as beneficiaries. The will failed to mention his unborn children as beneficiaries. After her husband’s death, Ms. Capato began receiving in-vitro fertilization treatments, using her husband’s previously frozen sperm. The process was successful, and eventually, she gave birth to twins.
Roughly a month after the birth of the twins, Ms. Capato applied for survivor benefits for the twins, but the Social Security Administration (“SSA”) denied her claim. Ms. Capato sued the SSA, and after several appeals, her claim made it to the United States Supreme Court. The Supreme Court upheld the trial court’s denial of survivor benefits, stating that the purpose and design of the statute is to benefit those individuals who were supported by the deceased during the deceased’s lifetime.
The Supreme Court noted that the survivor benefits provision directs the SSA to understand state laws concerning inheritance in order to determine whether the applicant qualifies to receive benefits. Because the Capatos lived in Florida and because Mr. Capato’s will was executed in Florida, the Court looked to Florida law. Under Florida law, “a child born after a parent’s death must have been conceived during the deceased parent’s lifetime to inherit, so the twins did not qualify for survivor benefits.” Because the twins were conceived posthumously and were not named in Mr. Capato’s will, the Court held that they could not be considered beneficiaries under applicable Florida law.
If you or someone you know would like to protect the interests and/or benefits of an unborn child or children, it is extremely important that an experienced attorney is consulted in order to avoid problems such as those discussed above. The team at Chepenik Trushin LLP is knowledgeable and skilled in such cases. Please feel free to contact us for an initial consultation.