Is Child Conceived After Parent's Death Entitled to Benefits?

March 10, 2010

Author: Catherine M. Callery (Kate) | Louise M. Tarantino

An appeal pending at the Court of Appeals for the Eighth Circuit raises the thorny issue of whether a child who was conceived by in vitro fertilization and born more than two years after her father’s death from leukemia is entitled to Social Security benefits on his account. In an unreported decision, a U.S. District Judge for the Northern District of Iowa ordered the Social Security Administration (SSA) to pay benefits to Patti Beeler on behalf of her six year old daughter, Brynn Beeler.  Beeler v. Astrue, 1:09-cv-00019-JSS (N.D. Iowa, Nov. 11, 2009).  The District Court, acknowledging that it was “navigat[ing] the murky waters of the Social Security,” relied on Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004), to find that Brynn was a child of the insured within the meaning of the Social Security Act. [Note that Gillett-Netting has been adopted as Acquiescense Ruling (AR) 05-1(9) in the Ninth Circuit.]

Section 402(d) of the Act provides that a child is not a “child” unless entitled to inherit under the intestacy laws of the state where the insured was domiciled at the time of his death.  Relying on Gillett-Netting, the Court found that the child was nonetheless a biological child under §416(h) since parentage was not disputed.  The District Judge also found that despite a provision of Iowa intestate succession that limits inheritance rights to those children existing or “begotten” before the time of intestate’s death, Brynn was nonetheless entitled in inherit under another provision.  That section of the Iowa code provides that a biological child can inherit if the evidence providing paternity is available during the father’s lifetime, or if the child was recognized by the father as his child.  The Court interpreted the facts surrounding the case - in which the father specifically banked sperm with an agreement that his wife, Brynn’s mother, was the only one who could be inseminated with it, and in which the father agreed to accept and acknowledge paternity and responsibility for any resulting child – as “recognizing” the child under Iowa law.

SSA has appealed the district court decision to the Eighth Circuit Court of Appeals.  In the meantime, Ms. Beeler is lobbying to clarify the law in Iowa.  According to a February 2, 2010 article in the Des Moines Register, Patti Beeler has been held back in her fight with SSA “by a 150-year-old Iowa inheritance law written long before technology was available to allow the preservation of genetic material beyond a person’s life.”  A bill that would specifically address the rights of children conceived after a parent has died is wending its way through the Iowa legislature. It has been narrowly drafted to address, among other things, concerns about granting inheritance rights to children long after an estate has been closed. 

According to the article, eleven states have laws that address the rights of children conceived after the parent’s death.  New York, however, is apparently not one of them.