Providing for children conceived after death


Karen and Robert Capato married in 1999. Robert was diagnosed with cancer soon after their marriage; they knew they wanted children, so they began trying and also froze some of Robert’s sperm. They had a son, but knew that they wanted more children. After Robert’s death, Karen used in vitro fertilization and gave birth to twins who were biologically Robert’s children, born 18 months after his death. In the United States, there are survivor benefits for Social Security. Karen therefore applied for those benefits for all three of her children, as they were all also Robert’s children.

In a case that could have had far-reaching implications in the US, Astrue v. Capato, the US Supreme Court recently found that Karen’s younger children did not have the right to receive those survivor benefits. They based this on the law of Florida, where the Capatos lived; in that state, children must be conceived during the lifetime of the parent they are claiming through.

The issue of posthumously-conceived children is bound to become a bigger issue as science makes it increasingly easy to have children through alternate means. So far, there are no provinces in Canada where children can inherit if conceived after the parent’s death unless the will specifically allows for it. With scientific advances, the day likely will come when this will happen. You should prepare now.

You can read the entire decision here.