Child Conceived After Father Died Denied Survivor Benefits

The Supreme Court of Florida holds that a child conceived after his father’s death cannot receive survivor benefits because the father did not provide for him in his will. In Kathleen Steele v. Commissioner of Social Security (Fla. No. SC2022-1342, February 15, 2024).

Kathleen and Philip Steele, a married couple residing in Florida, used in vitro fertilization (IVF) to have children. After her husband died, Kathleen Steele used IVF to have an additional child, P.S.S., using his sperm.

In his lifetime, Mr. Steele had created a will. The will defined his family as his spouse, living children, and later-born or adopted children. He left his property to his wife and his “then living” children if his wife died before him.

Seeking survivor benefits from the Social Security Administration (SSA), Ms. Steele claimed P.S.S. had a right to benefits. The SSA denied her application, finding that P.S.S. did not qualify. The administrative law judge (ALJ) agreed with the SSA. The ALJ relied on Florida’s intestacy statutes to determine that a posthumously conceived child could only inherit if provided for in a will.

Ms. Steele sued the SSA in federal district court. When the district ruled against her, she appealed. The appellate court certified two questions of Florida law. First, did Mr. Steele’s will provide for P.S.S.? If so, can P.S.S. inherit under Florida law?

The highest court of Florida concludes that the will did not provide for P.S.S., so it does not need to resolve the second question.

Dictionary definitions reveal that “provide” means giving something to someone. Case law suggests that providing for someone in a will involves thinking about the recipient. For Mr. Steele to provide for his children, he would need to have contemplated having a post-death child.

The will does not provide for P.S.S. It entertains the possibility of children born or adopted after the execution of the will but before the testator’s death. It does not reference children conceived after his death. Moreover, P.S.S. could not receive anything from the will. The only children who could inherit through the will were “then living” at the time of his death. This excludes P.S.S.

Because Mr. Steele’s will does not provide for P.S.S., the child is not eligible for a claim for survivor benefits.

Read the full opinion.