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Mr. Miller has many years of experience in designing and implementing a comprehensive variety of Trusts, Wills, and other estate planning documents, as well as settling estates in the most expedient and appropriate method. Further, he counsels and assists clients on becoming eligible for VA benefits and Medi-Cal.

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When Words Lose Their Meaning…


By merv,

  Filed under: Blog, Estate Planning

Federal benefits, such as VA Aid & Attendance Non-Service Connected Disability Pension benefits and survivor benefits, Medicare, and Social Security are often ruled by a litany of definitions, describing the meanings for such basic words as “child.”  In the case of Astrue v. Capato, the facts of which were described in a former article, the issue of what “child” means in the context of a Social Security claim decided the case.

By way of a brief recap, Mr. and Mrs. Capato had some of Mr. Capato’s sperm preserved before death in order to preserve their ability to have children.  Shortly after Mr. Capato’s death, Mrs. Capato used the sperm in order to become pregnant.  She then claimed Social Security survivor’s benefits on behalf of the children.  The Social Security Administration (SSA) denied her claim, arguing that since the children were not heirs according to Florida law, they are not entitled to the benefits.  The SSA made this claim even though there was no dispute that Mr. and Mrs. Capato were the married, biological parents of the children.

Ironically, even though Social Security is governed by federal law, the case might have turned out differently if the couple had been from another state, like California.  This state’s intestacy statutes (the laws that determine how your property is distributed if you die without a will, trust, or other form of estate planning), recognize posthumously conceived children under certain circumstances.  The statutes governing intestacy directly refer to California Probate Code Section 249.5 as a means of proving a parent-child relationship.

Because preserving biological material for the purpose of having children after death is growing in popularity, especially among the military, it is important to recognize that not all children conceived using this method will be considered heirs.  Certain specific events must happen first:
1.    The person who is preserving his or her biological material must write, sign, and date a document stating that he or she is doing so to be used for future children.  The document must also state that it can only be amended or revoked by another written, signed, and dated document, and designate a person to be in charge of the biological material.
2.    The person designated to control the material must give notice to the administrator or executor of the estate within four months, and
3.    The child must be in utero within two years.

Only if the above steps are followed as they are outlined in the statute will the child be considered an heir for California purposes.  According to the Supreme Court’s ruling, if these steps are carefully followed by a California resident, it appears that the child would be eligible for Social Security survivor’s benefits.

For the purpose of Veteran’s benefits, the rules determining whether a potential beneficiary would be considered an eligible dependent or survivor are generally more lenient.  Nothing in the Supreme Court’s decision seems to affect the VA.s determinations.  However, for couples considering preserving their ability to have children after death, it is clear that California’s statutory rules should be followed explicitly to preserve all possible benefits.  Consult a qualified estate planning specialist to help you ensure that your future child will qualify!

For further information, you can read the text of the Supreme Court decision.

Estate Planning: The Price of Organization, Rewards, Gifts, and Wondrous Tax Things… FREE REPORT: This complimentary report, focused on Estate Planning, is comprised of many of Mr. Miller’s articles from his long running column for the largest regional newspaper in San Diego County. This report will guide you through the questions surrounding getting your estate planning in order.

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About Living Trusts

About Living Trusts is hosted by the Law Offices of Merwyn J. Miller, as your online resource center to help you explore these key issues, and others, regarding your estate.

Merwyn J. Miller, J.D.

  • Board Certified Specialist in Estate Planning, Trust & Probate Law
  • Co-Author of legal text book and of “Don’t Go Broke in a Nursing Home
  • Teacher of law courses at public and private colleges
  • Continuing Education Instructor for attorneys
  • Columnist for largest regional newspaper in San Diego County and professional journals for 15 years, Contributing author to the book “In Your Service: The Veteran’s Friend”
  • Masters Degree in Financial Services - Estate Planning
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