Are Posthumously Conceived Children Entitled to Social Security Survivor Benefits

In 2012, The Supreme Court of the United States decided a case called Astrue v. Capato which held that state laws must be used to determine whether a child-parent relationship exists for children who were conceived posthumously.  After this case came down from The Supreme Court, the Social Security Administration had to withdraw its Acquiescence Ruling (AR) 05-1(9), which was based on the premise that the biological child of an insured individual who was conceived by artificial means following the insured’s death is the insured’s “child” for purposes of determining survivor’s benefits eligibility.  Now, children must look to the state laws of where their parent was considered domiciled at the time of death to determine whether they are entitled to these benefits.

To the disappointment of many, the Astrue decision shut the door on automatic eligibility for survivor benefits for a posthumously conceived child. It also opened the floodgates for litigation on interpreting state law to determine whether these benefits are to be given.

Some states, for example, Utah, have already decided cases on this issue and held that “an agreement leaving frozen semen to the deceased donor’s wife does not, without more, confer on the donor the status of a parent for purposes of social security benefits.” The Court in this case found the Agreement did not include the donor’s consent to be a parent, therefore the child was not eligible to receive survivor’s benefits.  Other states, such as Washington, have interpreted their laws to allow a child in this situation to inherit the survivor’s benefits.

Source: NOSSCR Newsletter, November 2012, Page 1 and 9