Palm Desert Probate Attorney discusses the definition of Heirship

Until recently, it was pretty easy to determine heirship. If you died leaving children, they were your heirs. However, in an age of assisted reproductive technologies (ART) the definition is becoming significantly murkier. Today, you may have biological children born years after your death. Are these children your heirs? Do they have rights to your property and estate in the same way that children born during your life enjoy?

These are some of questions facing the United States Supreme Court this term in Astrue v. Capato. In this case, a Florida widow used the frozen sperm of her deceased husband in a successful in vitro fertilization giving birth to twins eighteen months after her husband’s death. She subsequently applied to the Social Security Administration for surviving child’s insurance benefits. The Social Security Administration denied the benefits and the woman appealed. The District Court affirmed the finding because Florida intestacy laws would not recognize the twins as children of the deceased husband. The woman then appealed to the 3rd Circuit which reversed the District Court’s ruling. Now, the case will be heard in front of the United States Supreme Court for clarification of the definition of the word “child.”

The finding by the Supreme Court will likely have widespread implications for Social Security Administration benefits. However, children born through ART may still face challenges under state inheritance laws. If heirs can include posthumously conceived children then presumably probate estates would need to be open indefinitely.

State Bar of California
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