The U.S. Supreme Court unanimously decided in Astrue v Capato1 that it’s proper for the Social Security Administration (SSA) to apply relevant state intestacy law to determine whether a posthumously conceived applicant for Social Security survivors benefits is a “child” of his deceased parent.1 The circumstances of the case remind us that it’s important for the law of property succession to evolve along with reproductive technology, but we have to wonder whether the decision also signifies that the Supreme Court would broadly support application of state law to determine marital status for purposes of federal law, if the Defense of Marriage Act (DOMA) were repealed. Under the terms of DOMA, same sex marriages aren’t recognized for purposes of the Social Security Act (the Act) and other federal laws, even if they’re legally recognized in the states in which they are formalized. 

In March, we reported that the U.S. Supreme Court heard oral argument in Capato, a seemingly unique case, in which the SSA had denied survivors benefits to twins conceived using artificially preserved genetic material about nine months after their father had died.2 We thought it would be a harsh result to deny Social Security benefits to the decedent’s offspring based on the timing of their conception, but we also understood the problems it would cause for the law of property succession if the door to paternity were kept perpetually ajar. An estate has to be settled sometime.

 

However, when the Supreme Court’s decision was published on May 21, 2012, we were surprised to see that it was unanimous, especially because the decision speaks broadly about the advantages of allowing the federal government to defer to state law to define family relations. In one passage, for example, Justice Ruth Bader Ginsberg, writing for the court, explains that:

"Requiring all ‘child’ applicants to qualify under state intestacy law installed a simple test, one that ensured benefits for persons plainly within the legislators’ contemplation, while avoiding congressional entanglement in the traditional state-law realm of family relations."

 

This decision was issued less than two weeks after President Obama advocated repeal of DOMA. Is the Supreme Court signaling a way for the federal government to approach the chaos of state same-sex marriage laws in the alternative to DOMA?

The Capato case couldn’t have been a simple decision. The U.S. Court of Appeals for the Eighth Circuit and the Ninth Circuit were divided on the issue. The Third Circuit reversed the federal district court in the case. However, a philosophically diverse Supreme Court issued a unanimous decision. Is this an intersection of the conservative states’ rights justices and the social progressives on the bench? Perhaps this is a subtle way to establish precedent for federal agencies to stay out of the fraught issue of deciding which marriages to recognize if DOMA is repealed.

Meaning of “Child”

In Capato, the technical issue was whether the biological child of a married couple is entitled to receive social security survivors benefits if the child was conceived after the death of the insured parent. The Act provides that every minor, unmarried child of a deceased wage earner, as defined by the Act, is entitled to survivors benefits. The Act states that the term “child” includes a “child or legally adopted child of an individual . . .” A later section directs that in determining whether an applicant is an individual’s child, the SSA shall apply the intestacy laws of the state in which the individual (that is, the alleged parent) was domiciled at the time of his death.

 

The applicants in Capato argued, and the Third Circuit Court of Appeals agreed, that the SSA doesn’t need to resort to application of state intestacy law, unless the applicant’s parentage is somehow in doubt. InCapato, everyone agreed that the applicants were the biological children of the deceased wage earner and his widow. The Supreme Court, however, held that the term “child” can mean different things for different purposes and that biological parentage often isn’t determinative. Accordingly, the Supreme Court held that it was reasonable for the SSA to apply state intestacy law to define “child” for purposes of survivors benefits in every case.

The applicants in Capato argued that it wasn’t fair for the SSA to rely on state intestacy laws, because the laws with respect to posthumous children vary greatly from state to state. Under application of state law, some posthumously conceived children would qualify for survivors benefits and some would not, simply based upon the parent’s state of domicile at death. The Supreme Court responded that, at worst, this would cause some applicants to receive benefits they weren’t intended to receive, but it wouldn’t deny benefits to anyone whom the Act was intended to assist.

According to the Supreme Court, the core purpose of the survivors benefit is to “provide . . . dependent members of [a wage earner’s] family with protection against the hardship occasioned by [the] loss of [the insured’s] earnings.” Posthumously conceived children are never financially dependent on their deceased parent. The fact that some posthumously conceived children may fit the definition of “child” under the intestacy laws of some states may cause the class of individuals receiving the survivors benefits to be over inclusive, but that problem was offset by the advantage of minimizing the administrative burden of proving financial dependency on a case-by-case basis.

Effect on Same-Sex Marriages

If DOMA were repealed, as the President recommends, does Capatocreate precedent for federal recognition of some same-sex marriages, based on administrative efficiency at the federal level? A unanimous Supreme Court couldn’t have been oblivious to that possibility.

 

Endnotes

1. Astrue v. Capato, No. 11-159 (Slip Opinion) (May 21, 2012).
2. John T. Brooks and Gregory F. Monday, “Posthumous Conception,” http://trustsandestates.com/wealth_watch/posthumous-conception-capato-astrue-supreme-court-0229/.