Advances in fertility treatments and the ability to freeze embryos and store sperm for later use means that children can be born long after a parent – usually the father – has died. This, in turn, has created dilemmas for executors, states, and soon the U.S. Supreme Court. Should a child conceived and born after a father's death inherit from the father's estate? From a grandparent's estate? Should a child be able to collect Social Security benefits based on the work record of a father who died before the child was conceived?
Parents and grandparents who wish to provide for a posthumously conceived child can do so in a will, but the law is less clear if the will does not specifically provide for posthumous children. While most states allow children conceived before a parent's death to inherit, current state laws vary on whether a child conceived after a parent has died can inherit from an estate. The uncertainty surrounding whether a posthumously conceived child can inherit can cause problems for executors who are trying to administer an estate. Suppose a father who has frozen sperm dies with a will that divides his estate equally between his children? How long does the executor need to wait to determine how many children there are?
In 2008, the Uniform Probate Code -- the model statute that states can use to create their own probate laws -- adopted a provision that would automatically include any children born to a surviving spouse within 45 months of a married decedent's death, which means a spouse would have three years to decide whether to use the frozen material. However, according to US News and World Report only two states -- Colorado and North Dakota -- have adopted the provision. Fifteen other states allow children to inherit under certain circumstances and five don't allow them to inherit at all. The remaining states don't have any laws addressing the issue.
Another area of debate is whether a posthumous child is entitled to the deceased parent's Social Security benefits. The Social Security Administration (SSA) looks to state law to determine whether a parent-child relationship exists, and there are reportedly some 100 cases that raise this question. The U. S. Courts of Appeals for the Eighth Circuit and Fourth Circuit have agreed with the SSA’s position, while the Ninth Circuit and the Third Circuit have disagreed.
The Supreme Court will be deciding this issue later this year in the case Astrue v. Capato. When Robert Capato was diagnosed with cancer, he froze some of his sperm before he started treatment. After he died, his wife used the sperm to conceive twins. She applied for surviving child's insurance benefits on behalf of the twins, but the SSA denied her benefits. The U.S. Court of Appeals for the Third Circuit ruled that it doesn't matter what state inheritance law says, as long as the children were "dependents" of the wage earner, they are entitled to benefits. The SSA appealed the ruling to the Supreme Court, which accepted the case.