Are Children Conceived Posthumously Eligible for Survivor Benefits?

Social Security insurance provides survivor benefits for dependent children of deceased workers to help compensate for the loss of financial support. Dependent children are defined as unmarried and under age 18 (19 if still full-time high school students). But are children conceived after the death of a parent eligible for these benefits? According to a U.S. appeals court, they may be. (1)

Karen Capato, a New Jersey mother, filed for and was denied survivor benefits on behalf of her twins who had been conceived in vitro after the death of their father, Robert. Mr. Capato had his sperm frozen before undergoing treatments for cancer in the hopes of producing a sibling for the couple’s other child. Mr. Capato died in March 2002; the twins were born in September of the following year. (2)

According to Social Security regulations, applicants have the right to appeal an agency decision. That process has four levels: reconsideration, hearing, an Appeals Council review and a review by a Federal Court. (3)

When Mrs. Capato’s application for benefits was denied she appealed, but the agency’s decision was upheld by a lower court judge in New Jersey. Earlier this month, a U.S. appeals court in Philadelphia reversed the lower-court judge’s ruling. That court found no doubt the twins were the biological children of Karen and Robert Capato and, as such, may be entitled to Mr. Capato’s Social Security benefits. However, the court ruled that Mrs. Capato must prove the twins were dependents or “deemed to be dependents” of Mr. Capato at the time of his death. (4)

Although a bit unusual, this case is not unique. There are at least four cases in which the Social Security Administration is being sued for survivor benefits for children conceived after the death of their fathers, three of which are pending. (2)

Complicating the Capato case is the issue of residence. Rules regulating dependency under Social Security follow the inheritance laws of the various states. At the time of his death, Mr. Capato was residing in Florida where children conceived after the father’s death are not considered heirs unless expressly named in a will. Mr. Capato died before naming the twins in his will. However, the children were born in New Jersey where the law states they may be considered heirs. The case is now pending review by a U.S. District Court. (2)





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