Intestacy Laws in Pennsylvania I KingSpry

Intestacy Laws in Pennsylvania: When a Child is Not Considered a Child

Posted on October 18th, 2018
by Ellen C. Schurdak

Couples, for a variety of reasons, may decide to have their sperm or eggs frozen so that children can be conceived in the future. Many couples are unaware of how the date of conception or birth of a child/ren can have substantial financial consequences.

In May 2012, the United States Supreme Court issued a decision in the case of Astrue v. Caputo on these financial issues. All couples who are considering deferring the conception of a child(ren) by freezing sperm or eggs should be aware of this case.

In the Supreme Court case, Karen Capato filed for Social Security survivor benefits on behalf of her two twin children. Karen’s husband, who was also the biological father of the twins, had died after battling cancer. The Social Security Administration, as the agency in charge of reviewing and administering social security survivor benefits, did not contest that the twins were biologically related to the decedent father. However, the Social Security Administration denied the survivor benefits since the children were conceived after the husband’s death; the twins were born nearly 18 months after her husband’s death. The husband, at the time of his death, lived in Florida.

The Federal Court of Appeals had initially ruled in Ms. Capato’s favor.

In so ruling, the appellate court reasoned that the twins were the undisputed biological children of the deceased wage earner, the father, and, therefore, qualified for survivor benefits. However, the United States Supreme Court reversed the appellate court’s decision. In reversing, the Supreme Court held that Florida’s intestacy law determines whether a posthumously conceived and born child qualifies for survivor’s benefits. The Supreme Court, while wrestling with the evolving definitions for the term, “child,” noted that the Social Security Act refers to state law to determine whether an applicant qualifies as an wife, widow, husband, or widower. Using this language from the Social Security Act, the Supreme Court ruled that the case should be sent back to the lower court to determine whether the twin children were recognized as heirs under Florida’s intestacy laws.

In Pennsylvania, the intestacy laws currently recognize a child who is conceived, but not born, before every parent’s death.

For practical purposes, Ms. Capato would not be entitled to receive social security survivor benefits on behalf of her twin children had her husband lived in Pennsylvania at the time of his death. The lesson learned from this case is simple. Couples should carefully consider the financial ramifications of their decision to defer conceiving children by having sperm or eggs frozen. While the Supreme Court addressed the issue under the laws relating to the Social Security Act, the issue often can arise in other contexts.

It is best to consult with an attorney who is well versed in this developing area of the law so that one is aware of the financial and legal repercussions of their decision.


heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.