When Is a Child a 'Child of'' a Deceased Parent?

Because of the many new technologies being developed and the medical advances they have facilitated in the past several decades, science is continually outpacing the law, even in family matters. Questions concerning who may be categorized as a “parent,” or who is a certain person's “child” must often be answered in the courts, and those answers can have far-reaching consequences beyond the emotional.

In March, the U.S. Supreme Court heard arguments in one such case, Astrue v. Capato. It concerns Social Security survivor benefits for children born years after their biological father's death, and pits a modern medical “miracle” against the strictures of the law as promulgated decades ago.

Their Father's Children?

The court case began in the U.S. District Court for the District of New Jersey, where that body rendered a March 2010 decision in Capato v. Astrue, 2010 U.S. Dist LEXIS 27350 (2010). The plaintiff, Karen Capato, is the mother of two children conceived through artificial insemination using the sperm of her deceased husband, Robert Nicholas Capato.

Capato and her husband had been married in 1999, in Florida. In that same year, Robert was diagnosed with esophageal cancer. Wanting to have children, and knowing that the chemotherapy he would have to undergo might render him infertile, Robert Capato and the plaintiff decided that he should have some of his sperm frozen. This he did in 2000. The couple had a child through natural means in 2001. Robert Capato executed a Florida will in 2001 naming the couple's child, as well as two children from his previous marriage, as beneficiaries. Karen Capato testified that they asked the attorney preparing the will to include unborn children also, but that the attorney did not follow through on that request. Robert Capato died in Florida in March 2002. His wife was artificially inseminated in New Jersey in January 2003, and later gave birth to twins.

On Oct. 31, 2003, the plaintiff applied for children's Social Security insurance benefits on behalf of the twins, on the account of their deceased father. In order to receive such benefits, the claimant must be a child, as defined in 42 U.S.C. ' 416(e), of a person who dies fully or currently insured; that child or the child's representative must file an application for benefits; the child must be unmarried and a minor (or meet disability requirements) at the time of application; and the child must be dependent on the insured wage earner at the time of decedent's death. 42 U.S.C. ' 402(d)(1); Smith v. Heckler, 820 F.2d 1093 (9th Cir. 1987).

Capato's application was twice denied administratively, then denied again after a hearing before an Administrative Law Judge (ALJ). The ALJ allowed that this was a “very sympathetic case” in which “allowing benefits would appear to be consistent with the purposes of the Social Security Act.” However, the ALJ believed that the twins were “not for Social Security purposes the 'child(ren)' of the deceased wage earner, Robert Capato, under Florida state law as required by section 216(h)(2)(A) of the Social Security Act.” Following this ruling, Karen Capato took her claim to U.S. District Court for the District of New Jersey.

District Court Adopts ALJ's Stance

The District Court framed the question before it as whether the Commissioner of Social Security had used the correct legal standard ' in this case, when determining the definition of a Social Security payer's “child.” The Social Security Act contains a definition of the term “child,” as well as instructions on how the Commissioner should determine whether an applicant is a “child.” According to 42 U.S.C. Section 416(e), “child” can mean “(1) the child or legally adopted child of an individual, (2) a stepchild ' and (3) a person who is the grandchild or stepgrandchild ' .” In addition, in response to societal changes that have made it increasingly possible for illegitimate children to inherit from their parents, Congress provided enhanced instructions for the Commissioner to follow when clarifications beyond those found in Section 416(e) were required. Section 416(h)(2)(A), titled “Determination of Family Status,” states: “In determining whether an applicant is the child ' of a fully or currently insured individual for purposes of this title, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property ' by the Courts of the State in which [such insured individual] was domiciled at the time of his death ' Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.”

Because the court agreed with the Commissioner and the ALJ that the twins did not fit neatly into the definition of “child” found in Section 416(e), it determined that the law of the state of the decedent's domicile must be used, in accordance with Section 416(h)(2)(A), to decide whether the Capato twins were the children of Robert Capato for purposes of determining their status as Social Security beneficiaries.

Karen Capato and two other witnesses testified that the Capatos had intended to move to New Jersey during Robert's lifetime, although he never made the move. They said he attempted to set up a business in New Jersey and had stated he was going to live there. However, the court found these assertions to be speculative, especially in light of the decedent's three-year residence in Florida prior to his death, and the fact that he executed his will in
Florida in accordance with Florida law. Therefore, Florida law would be applied to determine the twins' status as the children of Robert Capato.

In Florida, the laws of intestate succession specifically refer to “afterborn heirs,” and define them as “heirs of the decedent conceived before his or her death, but born thereafter.” Fla. Stat. Ann. S 732.106 (emphasis added). In addition, Fla. Stat. Ann. S 742.17(4) provides that a child conceived after the death of a biological parent will not be eligible to make a claim against the deceased parent's estate unless that child was provided for in the decedent's will. Thus, in accordance with Florida law, the twins would not be deemed to be Robert Capato's children. As such, the district court concluded they were not the children of the decedent under Social Securities Act Section 416(h)(2)(A) and were not, therefore, entitled to receive survivor benefits through him.

Third Circuit Weighs In

An appeal to the U.S. Court of Appeals for the Third Circuit resulted in reversal on this point. The Third Circuit explained: “Were we to determine that the ' 416(h)(2)(A) definition of 'child” is appropriate here and go on to apply the law of intestacy of Florida, as the Commissioner argues we should, we would affirm. But neither the Commissioner nor the District Court, who agreed with the Commissioner, has told us why, in the factual circumstances of this case, where there is no family status to determine, we would even refer to ” 416(h). Under ' 402(d), the child is a 'child' as defined in ' 416(e). To accept the argument of the Commissioner, one would have to ignore the plain language of ' 416(e) and find that the biological child of a married couple is not a 'child' within the meaning of ' 402(d) unless that child can inherit under the intestacy laws of the domicile of the decedent. There is no reason apparent to us why that should be so, and we join the Ninth Circuit in so concluding.”

The Ninth Circuit holding to which the court referred came in the case of Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004). Gillett-Netting involved a very similar set of facts to those in Capato. There, a man who was diagnosed with cancer had his sperm preserved prior to receiving chemotherapy. He died within months of diagnosis. Within a year, using his sperm to achieve in-vitro fertilization of her eggs, the deceased's wife became pregnant. She delivered twins in August 1996. The Ninth Circuit did not spend a lot of time determining if these twins were their father's children; this point was obvious to that court, which found that '' 416(h)(2) and (3), “were added to the Act to provide various ways in which children could be entitled to benefits even if their parents were not married or their parentage was in dispute,” and had “no relevance” for determining whether a claimant is the “child” of a deceased wage earner where parentage is not in dispute. Instead, the Gillett-Netting court focused on the question of whether the twins were their father's dependents at the time of his death. The court found that they were, and so were entitled to receive Social Security benefits, because children conceived in vitro are legitimate children of their biological parents and are thus deemed to be dependent upon them. (The federal government has acquiesced to the Gillett-Netting decision, though only in the Ninth Circuit. See Social Security Acquiescence Ruling 05-1(9), 70 Fed. Reg. 55 (Sept. 22, 2005). The district court that heard Capato did not reach the dependency issue because it found that the definition of “child” had not been satisfied.)

Supreme Court Takes Case

Certiorari to the U.S. Supreme Court was granted in Astrue v. Capato, 2011 U.S.LEXIS 8245 (U.S. 11/14/11).

In his March appearance before the Supreme Court, Eric Miller, assistant to the solicitor general, argued that the Social Security Administration's rejection of the Capato twins' application for benefits was required by the federal law because, as the law is written, Florida's statutes concerning intestate shares of a parent's estate must be followed. Justice Samuel Alito Jr. challenged Miller's assertion, asking whether the federal government would follow state law if a state got the “crazy idea” that children conceived and born in the conventional manner to married parents also had no right to inherit from their parents. Although Miller pointed out that other definitions of “child” in the Act would allow such children to receive survivor benefits, Judge Alito seemed unpersuaded that Congress would have wanted to exclude the Capato children from coverage, noting that the drafters of the Social Security Act could not have foreseen today's medical capabilities but “knew what a child was” and didn”t need to define it.

Karen Capato's attorney Charles Rothfeld, of Mayer Brown, echoed this concept in his presentation, observing that when Congress wrote the 1939 Social Security Law it could not have anticipated the scientific advances that resulted in the birth of the Capato twins 18 months after their biological father's death. He said that reading the law as the government urged “disfavors children who are born through ' assisted means.”

A decision is not expected for several months.

New York's Law Is Similar to Florida's

New York's Estates, Powers, and Trusts Law (EPTL) was amended in 2006 specifically to address the question of whether children conceived after a parent's death could inherit. EPTL 5-3.2 (b) excludes these children by defining the term “after-born child” to mean “a child of the testator born during the testator's lifetime or in gestation at the time of the testator's death and born thereafter.” The rationale behind the amendment was the promotion of finality in the distribution of estates.

While such finality is to be lauded when settling an estate, that same goal is not crucial to the administration of Social Security benefits, where no particular Social Security beneficiary will see his or her own benefits diminished if a child conceived after a parent's death also receives benefits. And it does not follow that states with laws like New York's and Florida's also want their citizens conceived after a parent's death to lose out on federal benefits most other children are entitled to.

There are, of course, arguments to be made for a cautious approach to the extension of Social Security survivor benefits to some children born through artificial means. The government highlighted some of the complications that could develop in its brief to the Third Circuit, where it argued that “although biological paternity can now be scientifically proven to a near certain degree of probability, modern artificial reproduction technologies currently allow for variations in the creation of child-parent relationships which are not solely dependent upon biology. The use of donor eggs, artificial insemination, and surrogate wombs could result in at least five potential parents. Accordingly, even in modern times, the basic assumption underlying the Gillett-Netting panel's reasoning ' i.e., that biological paternity always results in an 'undisputed' child-parent relationship ' is unfounded.” Appellee's Br. at 36 (internal citation omitted). Arguably, the list of potential “parents” through whom a child might be entitled to seek Social Security survivor benefits could become unwieldy.

If the Supreme Court ultimately sides with the government, Congress might be pressed to alter the criteria for Social Security survivor benefit eligibility, due to the fact that the popularity of preserving sperm and eggs is growing. Not only are those diagnosed with potentially terminal illnesses preserving their sperm and eggs for possible future use, but others are as well, such as those who want to postpone parenthood for a later date and soldiers deploying to war zones. The number of children who may find themselves cut off from the federal-government-provided benefits that other children enjoy is likely to rise absent a favorable ruling for the Capato children or Congressional intervention.

Janice G. Inman is Editor-in-Chief of this newsletter.

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Because of the many new technologies being developed and the medical advances they have facilitated in the past several decades, science is continually outpacing the law, even in family matters. Questions concerning who may be categorized as a “parent,” or who is a certain person's “child” must often be answered in the courts, and those answers can have far-reaching consequences beyond the emotional.

In March, the U.S. Supreme Court heard arguments in one such case, Astrue v. Capato. It concerns Social Security survivor benefits for children born years after their biological father's death, and pits a modern medical “miracle” against the strictures of the law as promulgated decades ago.

Their Father's Children?

The court case began in the U.S. District Court for the District of New Jersey, where that body rendered a March 2010 decision in Capato v. Astrue, 2010 U.S. Dist LEXIS 27350 (2010). The plaintiff, Karen Capato, is the mother of two children conceived through artificial insemination using the sperm of her deceased husband, Robert Nicholas Capato.

Capato and her husband had been married in 1999, in Florida. In that same year, Robert was diagnosed with esophageal cancer. Wanting to have children, and knowing that the chemotherapy he would have to undergo might render him infertile, Robert Capato and the plaintiff decided that he should have some of his sperm frozen. This he did in 2000. The couple had a child through natural means in 2001. Robert Capato executed a Florida will in 2001 naming the couple's child, as well as two children from his previous marriage, as beneficiaries. Karen Capato testified that they asked the attorney preparing the will to include unborn children also, but that the attorney did not follow through on that request. Robert Capato died in Florida in March 2002. His wife was artificially inseminated in New Jersey in January 2003, and later gave birth to twins.

On Oct. 31, 2003, the plaintiff applied for children's Social Security insurance benefits on behalf of the twins, on the account of their deceased father. In order to receive such benefits, the claimant must be a child, as defined in 42 U.S.C. ' 416(e), of a person who dies fully or currently insured; that child or the child's representative must file an application for benefits; the child must be unmarried and a minor (or meet disability requirements) at the time of application; and the child must be dependent on the insured wage earner at the time of decedent's death. 42 U.S.C. ' 402(d)(1); Smith v. Heckler , 820 F.2d 1093 (9th Cir. 1987).

Capato's application was twice denied administratively, then denied again after a hearing before an Administrative Law Judge (ALJ). The ALJ allowed that this was a “very sympathetic case” in which “allowing benefits would appear to be consistent with the purposes of the Social Security Act.” However, the ALJ believed that the twins were “not for Social Security purposes the 'child(ren)' of the deceased wage earner, Robert Capato, under Florida state law as required by section 216(h)(2)(A) of the Social Security Act.” Following this ruling, Karen Capato took her claim to U.S. District Court for the District of New Jersey.

District Court Adopts ALJ's Stance

The District Court framed the question before it as whether the Commissioner of Social Security had used the correct legal standard ' in this case, when determining the definition of a Social Security payer's “child.” The Social Security Act contains a definition of the term “child,” as well as instructions on how the Commissioner should determine whether an applicant is a “child.” According to 42 U.S.C. Section 416(e), “child” can mean “(1) the child or legally adopted child of an individual, (2) a stepchild ' and (3) a person who is the grandchild or stepgrandchild ' .” In addition, in response to societal changes that have made it increasingly possible for illegitimate children to inherit from their parents, Congress provided enhanced instructions for the Commissioner to follow when clarifications beyond those found in Section 416(e) were required. Section 416(h)(2)(A), titled “Determination of Family Status,” states: “In determining whether an applicant is the child ' of a fully or currently insured individual for purposes of this title, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property ' by the Courts of the State in which [such insured individual] was domiciled at the time of his death ' Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.”

Because the court agreed with the Commissioner and the ALJ that the twins did not fit neatly into the definition of “child” found in Section 416(e), it determined that the law of the state of the decedent's domicile must be used, in accordance with Section 416(h)(2)(A), to decide whether the Capato twins were the children of Robert Capato for purposes of determining their status as Social Security beneficiaries.

Karen Capato and two other witnesses testified that the Capatos had intended to move to New Jersey during Robert's lifetime, although he never made the move. They said he attempted to set up a business in New Jersey and had stated he was going to live there. However, the court found these assertions to be speculative, especially in light of the decedent's three-year residence in Florida prior to his death, and the fact that he executed his will in
Florida in accordance with Florida law. Therefore, Florida law would be applied to determine the twins' status as the children of Robert Capato.

In Florida, the laws of intestate succession specifically refer to “afterborn heirs,” and define them as “heirs of the decedent conceived before his or her death, but born thereafter.” Fla. Stat. Ann. S 732.106 (emphasis added). In addition, Fla. Stat. Ann. S 742.17(4) provides that a child conceived after the death of a biological parent will not be eligible to make a claim against the deceased parent's estate unless that child was provided for in the decedent's will. Thus, in accordance with Florida law, the twins would not be deemed to be Robert Capato's children. As such, the district court concluded they were not the children of the decedent under Social Securities Act Section 416(h)(2)(A) and were not, therefore, entitled to receive survivor benefits through him.

Third Circuit Weighs In

An appeal to the U.S. Court of Appeals for the Third Circuit resulted in reversal on this point. The Third Circuit explained: “Were we to determine that the ' 416(h)(2)(A) definition of 'child” is appropriate here and go on to apply the law of intestacy of Florida, as the Commissioner argues we should, we would affirm. But neither the Commissioner nor the District Court, who agreed with the Commissioner, has told us why, in the factual circumstances of this case, where there is no family status to determine, we would even refer to ” 416(h). Under ' 402(d), the child is a 'child' as defined in ' 416(e). To accept the argument of the Commissioner, one would have to ignore the plain language of ' 416(e) and find that the biological child of a married couple is not a 'child' within the meaning of ' 402(d) unless that child can inherit under the intestacy laws of the domicile of the decedent. There is no reason apparent to us why that should be so, and we join the Ninth Circuit in so concluding.”

The Ninth Circuit holding to which the court referred came in the case of Gillett-Netting v. Barnhart , 371 F.3d 593 (9th Cir. 2004). Gillett-Netting involved a very similar set of facts to those in Capato. There, a man who was diagnosed with cancer had his sperm preserved prior to receiving chemotherapy. He died within months of diagnosis. Within a year, using his sperm to achieve in-vitro fertilization of her eggs, the deceased's wife became pregnant. She delivered twins in August 1996. The Ninth Circuit did not spend a lot of time determining if these twins were their father's children; this point was obvious to that court, which found that '' 416(h)(2) and (3), “were added to the Act to provide various ways in which children could be entitled to benefits even if their parents were not married or their parentage was in dispute,” and had “no relevance” for determining whether a claimant is the “child” of a deceased wage earner where parentage is not in dispute. Instead, the Gillett-Netting court focused on the question of whether the twins were their father's dependents at the time of his death. The court found that they were, and so were entitled to receive Social Security benefits, because children conceived in vitro are legitimate children of their biological parents and are thus deemed to be dependent upon them. (The federal government has acquiesced to the Gillett-Netting decision, though only in the Ninth Circuit. See Social Security Acquiescence Ruling 05-1(9), 70 Fed. Reg. 55 (Sept. 22, 2005). The district court that heard Capato did not reach the dependency issue because it found that the definition of “child” had not been satisfied.)

Supreme Court Takes Case

Certiorari to the U.S. Supreme Court was granted in Astrue v. Capato , 2011 U.S.LEXIS 8245 (U.S. 11/14/11).

In his March appearance before the Supreme Court, Eric Miller, assistant to the solicitor general, argued that the Social Security Administration's rejection of the Capato twins' application for benefits was required by the federal law because, as the law is written, Florida's statutes concerning intestate shares of a parent's estate must be followed. Justice Samuel Alito Jr. challenged Miller's assertion, asking whether the federal government would follow state law if a state got the “crazy idea” that children conceived and born in the conventional manner to married parents also had no right to inherit from their parents. Although Miller pointed out that other definitions of “child” in the Act would allow such children to receive survivor benefits, Judge Alito seemed unpersuaded that Congress would have wanted to exclude the Capato children from coverage, noting that the drafters of the Social Security Act could not have foreseen today's medical capabilities but “knew what a child was” and didn”t need to define it.

Karen Capato's attorney Charles Rothfeld, of Mayer Brown, echoed this concept in his presentation, observing that when Congress wrote the 1939 Social Security Law it could not have anticipated the scientific advances that resulted in the birth of the Capato twins 18 months after their biological father's death. He said that reading the law as the government urged “disfavors children who are born through ' assisted means.”

A decision is not expected for several months.

New York's Law Is Similar to Florida's

New York's Estates, Powers, and Trusts Law (EPTL) was amended in 2006 specifically to address the question of whether children conceived after a parent's death could inherit. EPTL 5-3.2 (b) excludes these children by defining the term “after-born child” to mean “a child of the testator born during the testator's lifetime or in gestation at the time of the testator's death and born thereafter.” The rationale behind the amendment was the promotion of finality in the distribution of estates.

While such finality is to be lauded when settling an estate, that same goal is not crucial to the administration of Social Security benefits, where no particular Social Security beneficiary will see his or her own benefits diminished if a child conceived after a parent's death also receives benefits. And it does not follow that states with laws like New York's and Florida's also want their citizens conceived after a parent's death to lose out on federal benefits most other children are entitled to.

There are, of course, arguments to be made for a cautious approach to the extension of Social Security survivor benefits to some children born through artificial means. The government highlighted some of the complications that could develop in its brief to the Third Circuit, where it argued that “although biological paternity can now be scientifically proven to a near certain degree of probability, modern artificial reproduction technologies currently allow for variations in the creation of child-parent relationships which are not solely dependent upon biology. The use of donor eggs, artificial insemination, and surrogate wombs could result in at least five potential parents. Accordingly, even in modern times, the basic assumption underlying the Gillett-Netting panel's reasoning ' i.e., that biological paternity always results in an 'undisputed' child-parent relationship ' is unfounded.” Appellee's Br. at 36 (internal citation omitted). Arguably, the list of potential “parents” through whom a child might be entitled to seek Social Security survivor benefits could become unwieldy.

If the Supreme Court ultimately sides with the government, Congress might be pressed to alter the criteria for Social Security survivor benefit eligibility, due to the fact that the popularity of preserving sperm and eggs is growing. Not only are those diagnosed with potentially terminal illnesses preserving their sperm and eggs for possible future use, but others are as well, such as those who want to postpone parenthood for a later date and soldiers deploying to war zones. The number of children who may find themselves cut off from the federal-government-provided benefits that other children enjoy is likely to rise absent a favorable ruling for the Capato children or Congressional intervention.

Janice G. Inman is Editor-in-Chief of this newsletter.

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