Preconceived Notions and Post-conceived Children…

The U.S. Supreme Court recently heard arguments in the case of Astrue vs. Capato.  The basic facts of the case are as follows: Ms. Capato married rather late in life in 1999 to a man who, shortly after was diagnosed with cancer.  Because his condition was expected to be fatal, as it worsened he used a sperm bank in order to preserve his wife’s ability to have his children after his death.

Shortly after Mr. Capato died, his wife used the sperm deposited by her husband in order to fertilize her eggs and become pregnant.  The effort was successful and about 18 months after her husband’s death, she gave birth to twins.  She then applied for Social Security Survivor’s benefits, for which she has been fighting from her initial Social Security Commission appeal all the way to the Supreme Court.

As you may know, the U.S. Supreme Court is not required to take a case when one is appealed to its level.  Often the Supreme Court will take cases that are, for lack of a better phrase, confusing everyone.  The circuit courts (the level below the Supreme Court), have come up with a number of different rationales leading to both conclusions: the children should receive SSA Survivor Benefits and that the children are not.  This has created a situation where the law is, essentially, different depending on where you live.
The U.S. Supreme Court also takes cases that it believes to be indicative of widespread or growing issues.  Over the last few years, there has been a growing trend among military men to freeze sperm before going to war so that, in case they do not make it back, their wives can conceive their children.  Presumably the wives would expect their children to be entitled to all the federal benefits afforded military children.  Depending on how the opinion is written, which will take several months, the case will potentially implicate other survivor benefits such as Survivor’s and Dependants’ Education Assistance or V.A. Aid & Attendance Non Service Connected Pension or Dependency and Indemnity Compensation.

If the Supreme Court determines that Ms. Capato’s children are entitled to benefits, it will presumably mean that children born even years later may be eligible for benefits.  However, if they decide the children are not entitled to benefits, it will essentially change the definition of a child from one of simple biology to something more complex.  Interestingly, the difference does not merely lie in the fact that new technology was used in order to conceive the children.  If everything was exactly the same, but Mr. Capato was alive, the children would be entitled to benefits when he eventually died.  Additionally, if everything was the same but Ms. Capato was pregnant already a month before the death of her husband, it would not matter that they were actually born after his death; the children would be entitled to benefits.  In either event, it is clear that this 1930s law does not fit squarely into the new concepts of family.

If you and your spouse are considering preserving your ability to conceive children together even after one of your deaths, it is important to consider whether some of these federal benefits will be available to them before deciding to have the child.  Additionally, a side issue in this case was that the child was not an “heir” under Florida state law.  Ensuring that you have provided for your un-conceived children in your estate planning documents by completing certain formalities may be vital to preventing their eventual disinheritance.  This is especially true if one of the opinions in the Astrue vs. Capato case (that the child could not inherit under state law prevented inheritance under federal law) is persuasive to the Supreme Court.

Estate Planning: The Price of Organization, Rewards, Gifts, and Wondrous Tax Things…

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