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No “Orphan” Benefits for Children Conceived After Father’s Death

When Karen Capato used her husband’s frozen sperm to conceive twins eighteen months after he died, the twins could not get Social Security benefits for having a deceased parent.

In a case that went to the U.S. Supreme Court, the court had to look at Florida’s laws on inheritance.  There was no question that the twins were the biological children of Karen and Robert Capato, but Robert had passed away eighteen months before, so Karen used frozen sperm from Robert that he had provided before his death.  Unfortunately for the children, Robert lived in Florida until he died, and in that state, as in many others, only children conceived during the parents’ lifetimes can inherit.  In California, the situation has not been addressed by any court, but the Probate Code deals with the situation by declaring that in most cases, a child so conceived (by using the husband’s frozen sperm) within two years of the parent’s death is the child of the deceased parent.

The most interesting part of the decision is a concise statement about the current law regarding parentage:  “A biological parent is not always a child’s parent under law. Furthermore, marriage does not necessarily make a child’s parentage certain, nor does the absence of marriage necessarily make a child’s parentage uncertain. “  What the court is saying is that traditional ideas about who is a parent are changing dramatically.