Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Sunday, December 1, 2013

Article on Posthumously Conceived Children

LexisJennifer Matystick (University of California Berkeley School of Law) has recently published an article entitled, Posthumously Conceived Children: Why States Should Update Their Intestacy Laws After Asrue v. Capato (Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2021, 2012.) 28 Berkeley J. Gender L. & Just. 269-292 (2013). Provided below is the abstract to the article:

On May 21, 2012, a unanimous Supreme Court held in Astrue v. Capato that posthumously conceived and biological children are only entitled to social security survivor benefits "if they qualify for inheritance from the decedent under state intestacy law, or satisfy one of the statutory alternatives to that requirement." 1 This decision gives the Social Security Administration its due deference under Chevron, 2 and also avoids the application of an outdated federal law to new assistive reproductive technologies, a fear voiced by some members of the Supreme Court during oral arguments. 3 However, the decision also highlights the need for more uniform and updated state laws concerning the inheritance rights of posthumously conceived children. By allowing states to determine whether posthumously conceived children may receive social security survivor benefits, the Court's decision may extend benefits to children not originally considered part of the core group of intended beneficiaries of the Social Security Act - those who were not technically dependent upon the deceased wage earner at the time of his or her death - but who are nonetheless deserving of such benefits. However, for that to happen, more states need to explore and adopt legislation that specifically addresses the status of posthumously conceived children. Indeed, many state laws are as outdated as the Social Security Act in the ways that they address assistive reproductive technology and posthumously conceived children. For application of state intestacy law to be truly a "workable substitute for burdensome case ...


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