The U.S. Supreme Court ruled recently that individual state intestacy laws determine the inheritance rights of posthumously conceived children.
In the Florida case of Astrue v. Capato, Karen Capato conceived twins using stored semen following her husband Robert’s 2002 death in Florida, their state of residence. She subsequently moved to New Jersey and gave birth to twins 18 months after their father’s death.
On behalf of the twins, Karen Capato applied for Social Security survivor benefits and was denied on the grounds that the father had to be living at the time of conception. In their unanimous verdict, the U.S. Supreme Court ruled that since SSA benefits qualifications adhere to state inheritance law, and since Florida says a child cannot inherit through intestate succession unless conceived while the deceased parent was alive, the twins did not qualify for the SSA benefits.
California has already made provisions for posthumously conceived children. Under California law, a child that is conceived following a father’s death can inherit if the father gave permission, in writing, for his genetic material to be used after his death to conceive a child and if the child is conceived within two years after the father’s death. (Cal. Prob. Code § 249.5.)
The Flanigan Law Group provides Southern California residents with personal attention for estate planning, administration and litigation legal services. When disputes between families, arise, they are very successful in resolving legal estate issues quickly and efficiently while preserving financial and emotional resources. Contact the Flanigan Law Group at 949-450-0042.