Wills, Trusts & Estates Prof Blog

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

Monday, March 3, 2014

Article on Posthumously Conceived Children


Nathan Rick Allred recently published an article entitled, The Uncertain Rights of the Unknown Child: Federal Uniformity to Social Security Survivors Benefits for the Posthumously Conceived Child After Astrue v. Capato, 66 Okla. L. Rev. 195 (Fall 2013).  Provided below is the introduction to his article:

In today's economy, possibly more than ever, the modern family is faced with the worry and need for financial security. That necessity is only intensified when a family starts to expand with the addition of children. In 2010, the United States Department of Agriculture calculated that the total expenditures spent raising a child from birth to age seventeen was $226,920. This represents a 22% increase from 1960, with children's health care expenses doubling as compared to other costs during the same time period. Given the large costs associated with raising a child, it is understandable that parents and potential parents look to utilize all available means of income.

For some unfortunate families, the economic hardship of raising a child may be exacerbated by the death of one parent. Such a situation often leaves the surviving parent as the sole financial provider for the child. Some surviving parents, however, may find a potential source of income from the federal government through the Social Security Act (the Act). The Act provides financial relief to qualified workers and their family members if they meet certain requirements. While there are many benefits for which a family member may qualify based on his or her relationship to a qualified worker, this note specifically addresses the relationship status of a posthumously conceived child to a predeceased worker-parent and the right of such a child to claim social security child's insurance benefits.

The posthumously conceived child's right to child's insurance under the Act has been a contentious issue in recent years. As a result, the circuit courts were continually called upon to answer the question of insurance availability. The answers, however, failed to be consistent. More specifically, the circuit courts split on the child status question, reaching opposite conclusions on who qualified as a “child” under the provisions of the Act.

As a result of the circuit courts' failure to reach consensus, the Supreme Court granted certiorari in Astrue v. Capato ex rel. B.N.C. to resolve the issue. The Court, based on the language of the Act and the proper standard of review, correctly held that a posthumously conceived child does not automatically qualify for child's insurance benefits. Instead, his or her “child” status must be determined based on applicable state intestacy statutes. To hold otherwise would have contradicted the purpose and plain reading of the Act. As a result, the posthumously conceived child's right to claim child's insurance benefits under the Act rests solely on that child's ability to claim from his or her predeceased parent's estate through state intestacy law.

Understanding this position to be correct requires knowledge of the history of the issue, which will permit fuller comparison and a more thorough analysis of the ultimate “child” status question. Part II of this note provides that history, discussing the standard used by courts to evaluate an agency's interpretation of a federal statute. The section also reveals the competing views that different jurisdictions took prior to Capato when considering the question of status for posthumously conceived and born children. This framework sheds light on Part III's analysis of the Capato decision itself. Part IV assesses the present state of the law and considers how states like Oklahoma, a state with unclear intestacy laws regarding posthumously conceived children, may fit within the Capato paradigm. Given precedent from other jurisdictions, rights of the posthumously conceived child may or may not be protected under extant Oklahoma legislation and case law.


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