A posthumous child is a child who is born after the death of the child’s mother or father, according to Warren’s Heaton on Surrogate’s Court Practice. To determine whether a posthumous child has the right to inherit from his or her predeceased parent, most states apply the Uniform Parentage Act (UPA). The law was drafted by National Conference of Commissioners on Uniform State Laws in 2002 and approved by the American Bar Association in 2003. Those states that do not apply the UPA have their own laws that serve a relatively similar function to the UPA in making such determinations. Every state shares one commonality: The surviving parent must provide proof of the deceased’s intent for the posthumous child to inherit.
Because the surviving parent must comply with every element of the posthumous inheritance statute, this article proposes that the application should sway toward a substantial compliance view rather than a stricter burden of proof. This means that courts should review the number of elements satisfied along with the totality of the circumstances in order to make a determination as to the rights of a posthumous child.
Currently, a parent who applies for survivorship rights on behalf of his or her child submits the application to the Social Security Administration (SSA). The Social Security commissioner approves applications based on whether the child could inherit personal property from the deceased as his or her natural child under state inheritance laws. 20 C.F.R. § 404.355(a)(1). If the child cannot inherit, the application is denied, and the surviving parent may appeal the decision with the SSA. If they are denied again, the surviving parent may commence a lawsuit. Courts use a de novo standard of review to determine whether there is substantial evidence supporting the commissioner’s decision to deny the application. Pollard v. Halter, 377 F.3d 183, 188 (2d Cir. 2004). However, if the elements of the posthumous inheritance statute are not entirely fulfilled, courts have found in favor of the SSA, thus requiring strict compliance with the statute. In the interest of public policy, courts should not require that the surviving parent comply with every element of the statute. Below are examples of how courts have rendered decisions based on posthumous inheritance statutes in various states.
In 2012, the U.S. Supreme Court decided Astrue v. Capato ex rel. B.N.C., 566 U.S. 541 (2012), a case regarding twins conceived via in vitro fertilization 18 months after the death of their father. The Court relied on section 416(h)(2)(A) of the Social Security Act, holding that the twins could receive Social Security benefits “only if they qualified for inheritance from the decedent under state intestacy law.” Astrue, 566 U.S. at 559. Because the deceased resided in Florida at the time of his death, Florida intestacy law applied and the children did not qualify for inheritance, making them ineligible for Social Security benefits. Id.
In Woodward v. Commissioner of Social Security, 435 Mass. 536 (2002), the U.S. District Court for the District of Massachusetts certified the following question to the Massachusetts Supreme Court:
If a married man and woman arrange for sperm to be withdrawn from the husband for the purpose of artificially impregnating the wife, and the woman is impregnated with that sperm after the man, her husband, has died, will children resulting from such pregnancy enjoy the inheritance rights of natural children under Massachusetts’ law of intestate succession?
The Massachusetts Supreme Court held that there were limited circumstances in which posthumously conceived children may enjoy the inheritance rights of issue under intestacy law. The requirements are as follows: (1) A surviving parent or legal representative must show a genetic relationship; (2) the decedent parent affirmatively consented to the posthumous reproduction and to support any resulting child; and (3) the filing complies with the statute of limitations. Id. at 537. Although the court acknowledged the deceased as the genetic father of the wife’s children, it held that the evidence was not sufficient to establish the husband as the children’s legal father for purposes of the devolution and distribution of his intestate property. Id. at 555.
In New York, the law establishes that posthumous children may be considered distributees of their genetic parents for inheritance purposes, provided all criteria set by the law are satisfied. Among these criteria, the deceased parent must have indicated in a written instrument that he or she intended to have his or her reproductive cells, referenced in the New York law as genetic material, used to conceive a child no more than seven years before the death of the genetic parent. In addition, the written instrument must authorize the surviving partner to make decisions about the deceased’s genetic material and be filed with the Surrogate’s Court within the respective county of residency. Finally, the law requires that the genetic child was in utero no later than 24 months after the genetic parent’s death or born no later than 33 months after the genetic parent’s death. N.Y. Est. Powers & Trusts Law § 4-1.3 (McKinney).
What requirements should be necessary for posthumous children to inherit aside from proving a relationship to the decedent? There have been few cases in New York to address the relatively new statute. However, New York courts have held to a strict compliance standard. See MacNeil v. Berryhill, 869 F.3d 109 (2d Cir. 2017) (holding that children conceived in vitro 11 years after their father’s death were not entitled to child’s survivors’ benefits).
California’s posthumous inheritance statute has similar requirements to New York’s, and case law in California also supports a strict compliance view. See Vernoff v. Astrue, 568 F.3d 1102 (9th Cir. 2012) (holding that children could not inherit under the statute based on lack of evidence that decedent consented to having a child postmortem and the fact that they were conceived three years after decedent’s death).
Like California state law, Texas state law adheres to the UPA but adds an additional requirement. “If a spouse dies before the placement of eggs, sperm, or embryos, the deceased spouse is not a parent of the resulting child unless the deceased spouse consented in a record kept by a licensed physician that if assisted reproduction were to occur after death the deceased spouse would be a parent of the child.” Tex. Fam. Code Ann. § 160.707 (West 2001). This additional requirement could make inheritance even more challenging, making the process dependent on records of a third party (i.e., a physician) beyond the couple.
From a public policy view, strict compliance aids in avoiding fraudulent claims, but, arguably, substantial compliance would lead to the same result. If an individual, as a spouse, produced a marriage license and a DNA test that revealed his or her child to be a descendant of a predeceased spouse, is that enough to avoid fraudulent claims? It should be. The aforementioned examples support the argument that the decedent intended for his or her unborn child to inherit, an element of the law that must be satisfied regardless of the state. Moreover, if this type of evidence was deemed satisfactory for survivorship benefits, it would relieve the burden on the court system. The approval rate of applications would increase, resulting in fewer lawsuits from decedents’ families. Thus, substantial compliance would provide benefits for families as well as society as a whole.
Most cases solely address Social Security benefits, but consider other sources of inheritance like real and intellectual property. How do these statutes apply in practice? Should lawyers who practice in the area of wills, trusts, and estates include a section about a client’s genetic material in the client’s will or trust? In theory, this seems to be the best option to prove the intent of the deceased to support the child. If the parents resided in a state that requires a record from a physician, like Texas, the attorney could include a signed affidavit from a physician. However, if the document is not duly executed, the surviving parent could face the same issues that would have arisen without the document. There is clear disagreement among the states on whether a posthumously conceived child is an heir of the predeceased parent. However, as technology continues to develop and families continue to evolve, society will require courts to intervene to address these unanswered questions.
It seems that the application of strict compliance harms families who are already suffering. Imagine celebrating the birth of a child after grieving the loss of a partner, only to be denied benefits because you forgot to obtain consent to that child’s conception. What if a parent resided in Texas and the physician who assisted in the reproduction process passed away? There is no case law or statute that provides guidance for what to do under these circumstances. Thus, courts should take the stance that substantial compliance, rather than strict compliance with a law, should be sufficient. Arguably, the fact that the decedent spouse left genetic material should be enough for consent in most standard cases. However, until courts adopt substantial compliance as a standard and as the law stands, it is best to get a signature before one celebrates.
Alea Roberts is a student at New York Law School, in the class of 2020.
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