Posthumously Conceived Children Not Entitled to Social Security Benefits

Eighteen months after her husband’s death of cancer, a woman gave birth to twins conceived via in vitro fertilization from her husband’s frozen sperm, which he had banked prior to undergoing chemotherapy treatment. The mother applied for Social Security survivor’s benefits for the twins. The Social Security Administration (SSA) denied the application.


The SSA’s denial of the application was affirmed by the district court. The federal statute governing survivor’s benefits specifies that an applicant qualifies if he or she is the “child or legally adopted child” of an insured. The statute does not define “child.” The SSA argued, and the district court agreed, that a definition of “child” contained in a separate section of the Social Security Act should be construed to applied to the survivor’s benefit section. Under the separate section, “child” is defined by looking to the intestacy law of the insured’s domiciliary state. The decedent lived in Florida, where posthumously conceived children are not eligible to inherit by intestacy.


The court of appeals reversed, holding that the undisputed biological children of a deceased wage earner and his widow qualify for survivors benefits without regard to state intestacy law.


The U.S. Supreme Court agreed with the SSA and the district court, holding that because a child who may take from a parent’s estate is more likely to be dependent during the parent's life and at his/her death, reliance on state intestacy law to determine who is a “child” serves the Social Security Act's driving objective, which is to provide for those who were dependent on the insured during his/her lifetime and at the time of his/her death. Therefore, the children, who could not inherit from the decedent under Florida's intestacy law, were not entitled to Social Security survivors benefits.


See: Astrue v. Capato ex rel. B.N.C., 2012 WL 1810219 (U.S.  May 21, 2012) (not designated for publication).