A Brave New World? IVF, Posthumous Children & Inheritance

In 1999, Robert Capato, was diagnosed with esophageal cancer. He opted to undergo chemotherapy and fearing it would leave him sterile donated sperm.

Robert recovered, his fears weren’t realised and he and his wife Karen conceived naturally. Robert made a Will providing for the child as well his children by a former marriage. No provisions were made in the will for posthumous children.

In 2002 the cancer returned and Robert died.

Eighteen months later, Karen gave birth to twins conceived via IVF treatment using the sperm deposited in the sperm bank. Karen applied for Social Security Survivors Benefits based on Robert’s lifetime earnings.

Robert died in Florida, where children are not entitled to inherit from a parent if they were conceived after that parent’s death. The Social Security Administration applied state inheritance laws to decide if a person was a “child” under the Social Security Act and therefore eligible for survivors benefits.

Karen appealed and the US Court of Appeals for the Third Circuit reversed the Social Security Administration’s decision.

The Supreme Court, was to decide if the children were entitled to survivor benefits. The Court allowed the appeal finding that under Florida law, a marriage ends on death of the spouse and the twins were conceived posthumously; therefore did not qualify as Robert’s children under the  Social Security Act.

Following this decision several states changed their laws to address the situation of posthumously conceived children.

These new laws commonly establish a time limit on when a child who’s conceived after the parent’s death must be born in order to inherit, legislators have been mindful of the fact that it would be impossible to administer an estate if a child born many years after her parent’s death was legally entitled to inherit part of the estate.

Under Californian and Iowa  law, children must be conceived and in utero two years after a parents death, however Delaware has no time limits as long as there is written consent from the deceased parent.