Time to Check Your Will After Supreme Court Denies Survivor Benefit for Twins Conceived After Father’s Death

A U. S. Supreme Court decision this week serves as a wake-up call for careful drafting or amending of your Last Will and Testament.  It is also a call to action for state legislatures.  The Court denied a Florida mother survivor benefits for twins conceived by in-vitro fertilization (IVF) after her husband died.  The court held unanimously that Karen Capato could not collect survivor benefits for the twins from the Social Security Administration (SSA).  She had the twins 18 months after her husband died, using his frozen sperm.

SSA turned the application down because Capato’s twins, who were conceived posthumously, did not qualify to inherit from their late father under Florida law.  The court states that SSA properly looked to state law to determine the children’s eligibility for the federal entitlement.

The effect of this U. S. Supreme Court decision in Oklahoma is unclear.  There is no state statute or case law discussing the inheritance rights of children conceived by mothers using the frozen sperm of a deceased father.  According to this article from National Public Radio, thirteen states have laws that specifically allow posthumously conceived children to inherit in cases where there is no will. Four states, including Florida, specifically do not allow it.  In the rest of the country, as in Oklahoma, the law is unclear.

It is a growing phenomenon for persons with life-threatening illnesses or hazardous job duties (like soldiers headed into combat) to store sperm for later use.  If you have stored sperm, there is a lesson for you in this weeks’ Supreme Court case.  Please contact an attorney promptly to draft or amend your Last Will and Testament. You need to include a clause that children conceived by IVF after your death should (or should not) be treated as your other surviving children.

For those who don’t have a Last Will and Testament, this issue needs to be addressed by the Oklahoma Legislature.  I think children conceived through IVF, even after the father has passed away, should be treated the same as children born while both parents were alive.  Oklahoma lawmakers can, and should, make this happen.

Please share your thoughts on the case of Astrue v. Capato in the Comments section below.

by David Tracy

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