Can Artificially and Posthumously Conceived Children Inherit under the Law?

Although advances in assisted reproductive technology (ART) are changing the traditional definition of parenting, many states’ laws are not keeping pace with science.  Most states adhere to the Uniform Parentage Act which holds that the presumed father of a child conceived by his wife is the father of that child, no matter whose sperm was used. However, if the child is conceived posthumously, what are the child’s inheritance rights?

After learning that he had esophageal cancer, Robert Capato deposited sperm in a sperm bank in 2001. His health improved and in 2001, he and his wife, Karen, conceived a son through natural means. Capato’s health declined and he died in 2002. Not wanting their first child to be without siblings, the couple had agreed that Karen would use the frozen sperm.  In 2003, 18 months after her husband’s death, she gave birth to twins conceived through in vitro fertilization. Karen Capato then applied for Social Security survivors benefits for all three children.  The Social Security Administration (SSA) rejected the claim for the twins.  When the decision was reversed on appeal by the U.S. Court of Appeals for the Third Circuit in Philadelphia, PA, the SSA took the case to the U.S. Supreme Court.

In a unanimous decision, the Supreme Court ruled that in order to receive Social Security survivor benefits, a person must qualify as a child of the deceased insured parent under state intestacy (dying without a will) laws.  Capato died in Florida, a state which expressly prohibits posthumously conceived children from inheriting unless they are named in a will. Therefore, the twins did not qualify for SSD survivor benefits. Although the twins cannot be made eligible for Social Security survivor benefits by naming them in the father’s will, if Capato had made a will including any posthumous children, the twins would at least qualify to inherit any of his property he wanted to leave them.

Parents who have frozen sperm or eggs are advised to check their state laws regarding the inheritance rights of posthumously conceived children. A qualified Tampa estate planning attorney can help Florida parents revise their wills to incorporate their inheritance intentions for any children conceived posthumously.