Is a child conceived after the death of a biological parent eligible to receive survivor benefits under the Social Security Act regardless of state intestacy laws?
Shortly after Robert Nicholas Capato’s death, his wife Karen Capato underwent in vitro fertilization using his frozen sperm and gave birth to twins in 2003. Karen Capato applied for Social Security benefits on behalf of her twins as survivors of a deceased wage earner. The Social Security Administration ("SSA") denied her claim. An Administrative Law Judge (“ALJ”) affirmed, ruling that state intestacy law controls eligibility for survivor benefits for posthumously conceived children under the Social Security Act ("Act"). Therefore, the twins were ineligible for benefits under the applicable Florida law. On appeal, the district court affirmed the ALJ’s reading. The United States Court of Appeals for the Third Circuit reversed and ruled that the plain language of the Act entitles the Capato twins, whose parentage is not in dispute, to survivor benefits. Petitioner Michael J. Astrue, Commissioner of the SSA, argues that the Act requires the agency to apply state intestacy law to determine whether an applicant is the child of an insured wage earner for the purpose of receiving survivor benefits. In contrast, Respondent Karen K. Capato contends that the Act unambiguously entitles undisputed biological children of married parents to survivor benefits, without referring to state intestacy laws. The Supreme Court’s decision will authoritatively interpret the Act’s mandate on the determination of survivor benefits eligibility, and possibly reflect on the balance between legislative rulemaking and unanticipated progress of science and technology.
Questions as Framed for the Court by the Parties
Whether a child who was conceived after the death of a biological parent, but who cannot inherit personal property from that biological parent under applicable state intestacy law, is eligible for child survivor benefits under Title II of the Social Security Act, 42 U.S.C. 401 et seq.
Shortly after Karen and Robert Nicholas (“Nick”) Capato were married in New Jersey in 1999, Nick Capato was diagnosed with cancer. To ensure that the couple would be able to have biological children one day, Nick Capato subsequently deposited his sperm at a fertility clinic for purposes of in vitro fertilization (“IVF”). The Capatos gave birth to a son by natural means, but they were unable to have additional children before Nick Capato’s condition deteriorated. In his will, executed three months before his death, Nick Capato provided for his naturally born child with Karen as well as two children from a previous marriage. The will made no mention of any unborn child who might be conceived through IVF after his death.
In March 2002, Nick Capato passed away in Florida. Karen Capato subsequently moved back to New Jersey and, 18 months after her husband’s death, gave birth to twins conceived through IVF. These children are undisputedly the biological children of Nick and Karen Capato.
Promptly after they were born, Karen Capato filed for survivor benefits on behalf of her twins under Title II of the Social Security Act (“Act”). The Social Security Administration denied her claim, and an administrative law judge (“ALJ”) affirmed this denial, holding that the twins were not Nick’s “children” for purposes of the Act. The ALJ used Florida law to define “child,” because § 416(h)(2)(A) instructs the Commissioner making this determination to use state intestacy laws from “the State in which [the insured] was domiciled at the time of his death.”
Karen Capato appealed this decision to the United States District Court for the District of New Jersey, which affirmed the denial. The district court agreed with the ALJ that Florida’s intestacy laws controlled in determining whether the children could inherit from their father. Because the twins could not inherit from Nick Capato under state law, the district court determined they were, therefore, ineligible for Social Security survivor benefits as well.
The United States Court of Appeals for the Third Circuit reversed, holding that a posthumous child conceived through IVF to parents who were married is unambiguously a “child” for purposes of the Act, regardless of the state’s intestacy laws. The Third Circuit emphasized the broad interpretation of “child” in § 416(e), making § 416(h)’s limitations inapplicable because the family status of the Nick Capato’s biological offspring was already clear. The court of appeals remanded the case to the district court to determine if the Capato twins were, in fact, dependents of their father within the meaning of the Act. The court of appeals subsequently denied Karen Capato’s petition for the case to be reheard.
The Supreme Court then granted certiorari to determine whether the biological, posthumous child of married parents who is ineligible to inherit from a deceased parent’s estate under state law may nevertheless be entitled to receive survivor benefits under the Act.
The Social Security Act (“Act”) provides that every child of a fully insured individual is eligible for survivor benefits if the child meets certain enumerated statutory requirements. Petitioner Michael J. Astrue, Commissioner of the Social Security Administration (“SSA”), contends that in determining the eligibility for survivor benefits under the Act, the SSA correctly applied state intestacy law as required under § 416(h)(2)(A), which resulted in the denial of entitlement for Capato’s children. Respondent Karen K. Capato argues that the SSA’s reliance on § 416(h)(2)(A) and state intestacy law was misplaced, and that the plain language of § 416(e) confirms her children’s eligibility for survivor benefits.
Plain Language of the Social Security Act
Astrue argues that the language of § 416(e)(1) alone does not provide the criteria to decide eligibility for survivor benefits, but creates a definitional tautology, i.e. a child is a child, which provides no guidance in determining applicants’ entitlement to survivor benefits. Instead, Astrue argues that § 416(h)(2)(A) provides concrete instructions on how to determine an applicant’s eligibility. Astrue explains that applicants who fall under § 416(e)(1) must first satisfy the exclusive and mandatory test described in § 416(h)(2)(A) which requires an applicant to look to state intestacy law to determine eligibility. Therefore, Astrue argues that the word “child” in § 416(e)(1) does not simply bear its ordinary meaning, but indicates the legal relationship a child must form with the insured, as specified in § 416(h)(2)(A). In addition, Astrue argues that the position that § 416(e)(1) alone can determine an applicant’s eligibility will render parts of § 416(h)(2) superfluous—which runs counter to traditional statutory interpretation. However, Astrue explains that relying on § 416(h)(2)(A) will not make § 416(e) superfluous, because other provisions of § 416(e) function to expand the Act’s coverage to additional categories of beneficiaries.
In response, Capato insists that, because Nick and Karen were married and the biological parentage of the twins is undisputed, the twins fall even within the narrowest sense of the word “child.” Consequently, Capato argues that referring to § 416(h)(2)(A) is unnecessary, because the plain language of §§ 416(d)(1) and 416(e) resolves the twin’s eligibility for survivor benefits. Capato also explains that the language of § 416(e)(1) does not create a definitional tautology at all, because when read together with its neighboring provisions, the word “child” in § 416(e)(1) undoubtedly distinguishes undisputed biological children from other categories of beneficiaries, e.g. stepchildren. Capato further notes that § 416(h)(2)(A) states that an applicant having the same status as a child under state intestacy law shall be deemed a child. Capato contends that this phrasing only makes sense if the word “child” has an independent meaning. Capato thus contends that whether an applicant is a “child” is not controlled by § 416(h)(2)(A), and consequently, an applicant’s eligibility for survivor benefits cannot be exclusively determined by § 416(h)(2)(A). Instead, Capato argues that § 416(h)(2)(A) only expands the Act’s coverage by providing an alternative to prove eligibility when the applicant is not a “child” under § 416(e)—an undisputed biological offspring of the insured.
Astrue argues that the Act’s legislative history unambiguously demonstrates that an applicant must establish the required legal relationship with the insured under § 416(h) to be eligible for survivor benefits. Astrue explains that when it was first enacted in 1939, the Act explicitly and exclusively resorted to state intestacy law to prove a child’s relationship with the insured and determine eligibility. Astrue notes that the Senate Committee acknowledged that because state intestacy law controls when determining eligibility, applicants of survivor benefits would receive different results due to disparities in applicable state laws. Astrue maintains that to provide greater uniformity, the 1965 amendment added alternatives to receive survivor benefits when an applicant became ineligible under state laws. But, Astrue notes that the Act’s broadened scope does not change the well-established, determinative position of state intestacy law; rather, the 1965 amendment merely provides a narrow carve out, where an applicant and the insured can form the requisite legal relationship that might not be established under the controlling state intestacy law.
Capato contends that because state intestacy laws differ greatly in their treatment to children born out of wedlock at the time of the Act’s enactment, Congress meant to apply § 416(h)(2)(A) only in cases where the applicant’s parentage was uncertain. Capato agrees that the 1965 amendment was meant to expand the Act’s coverage to children born out of marriage who had been denied survivor benefits because of less favorable state laws, consistent with the Senate Committee’s belief that entitlement should not differ due to disparities in state intestacy laws. But, Capato argues that the Committee’s reference to § 416(h)(2)(A) did not establish the exclusive control of state intestacy laws when determining eligibility, but rather extended the reach of the Act beyond marital children whose undisputable entitlement to benefit had been established by the plain language of § 416(e)(1). Finally, Capato acknowledged that, because the Act has a broad mandate to provide uniform protection of children and their families against misfortunes, it should be construed liberally in favor of coverage rather than exclusion.
Deference to Agency Interpretation
Astrue notes that the SSA has long been interpreting the Act as following state intestacy law in order for an applicant to be recognized as a child under § 416(e)(1). Astrue acknowledges that the SSA’s regulations have made § 416(h) the exclusive means to determine an applicant’s eligibility for survivor benefits shortly after Congress amended the Act to include child survivor benefits. Astrue concludes that because the SSA has promulgated the rules under appropriate mandate following the notice-and-comment rulemaking process, the Court should afford Chevron deference to the agency’s interpretation of the Act. Astrue further argues that even if the SSA’s rules were ambiguous, provisions in the agency’s Program Operations Manual System (“POMS”) have resolved the issue of posthumously conceived children’s entitlement to survivor benefits. Astrue contends that any POMS interpretation of the Act should be at least entitled to deference under Skidmore v. Swift & Co., which, although not binding, entitles an agency’s interpretation of a statute to judicial “respect.” Astrue argues that where the SSA is interpreting its own regulations, such interpretation is entitled to deference under Auer v. Robbins, which entitles such interpretation to judicial deference unless it is “plainly erroneous or inconsistent with the regulation.”
Capato argues that the SSA’s regulations are not entitled to Chevron deference because the Act’s language is unambiguous, and affords the SSA no discretion to interpret the statute otherwise. Capato further contends that even if the Court were to find ambiguity in the Act’s language, the SSA’s interpretation is still entitled to no judicial deference, because it is arbitrary and capricious. Capato notes that the SSA’s interpretation subjects only biological children to § 416(h)(2)(A). Capato notes that the SSA offers no rationale for treating a posthumously conceived biological child of a married couple differently and less favorably to a child or grandchild adopted legally by the surviving spouse after the insured’s death. Such an arbitrary distinction, Capato reasons, is not entitled to Chevron deference. Furthermore, Capato argues that the SSA’s POMS warrants no Auer deference for at least two reasons. First, Capato argues that Auer deference only applies to the agency’s interpretation of its own regulation, but here, the POMS interprets the Act itself, not the agency’s regulations. Second, Capato contends that Auer deference only applies to situations where the meaning of the agency’s regulation is in dispute, but here, the SSA does not make any argument showing ambiguity of its own regulations. Finally, Capato contends that although Skidmore deference could be applicable to the POMS interpretation, it is not warranted here because the plain language of the statute suggests a “markedly different” reading from the POMS interpretation.
The Supreme Court’s decision in this case will determine whether a posthumously conceived child may receive Social Security survivor benefits under Title II of the Social Security Act, (“Act”), even if that child cannot inherit from the deceased parent under state law. Petitioner Michael J. Astrue, Commissioner of the Social Security Administration ("SSA"), argues that the Capato twins are ineligible to receive Social Security survivor benefits because they do not qualify as Nick’s “children” under § 416(h)(2) and (3) of the Act and are ineligible to inherit from their father under Florida law. Respondent Karen K. Capato asserts, however, that the Act clearly allows her twins, conceived after her husband’s death, to receive survivor benefits from their biological father regardless of their inheritance rights under Florida’s intestacy laws.
Federalism and the Role of State Law
Astrue argues that family relationships are traditionally decided by state law, even in the context of federal programs like Social Security. Astrue contends that using a federal definition of what constitutes a parent-child relationship would upset the established intent of Congress and infringe upon a long-established domain of the states. Furthermore, Astrue asserts that the United States Court of Appeals for the Third Circuit went beyond the laws of any state in holding that a biological relationship by itself is adequate to confer Social Security survivor benefits on a child. Although Congress has the right to make this decision if it chooses, until it does so, Astrue argues that the courts must defer to state consent and time-limit requirements in deciphering dependency status when the relationship between a wage earner and a child is unclear.
Capato contends that finding the twins to be children of Nick Capato for purposes of the Act will not interfere with state law. Capato argues that it is Congress’ role, and not the role of the states, to define the terms that govern operation of a federal program. In fact, Capato posits that Congress has administered the Act as a response to individual states being unable to provide adequately for dependent children. The states benefit, argues Capato, by not having to exclusively rely on their own limited resources to provide for children requiring assistance following the death of a wage-earning parent.
Protecting Against Unanticipated Loss
Astrue holds that respecting Congress’ reliance on state law to determine eligibility for child survivor benefits ensures that the recipients most in need of assistance will receive aid. Astrue contends that biological children who are ineligible to inherit from a parent are less likely to have been dependent upon the wage-earner’s support. Astrue contends that the main goal of the Act was to assist children who faced an unanticipated loss of support after the death of a parent. Astrue asserts that extending support to children conceived by IVF after the death of a biological parent would risk turning it into a “general welfare provision.” In fact, because the wage earner’s benefits are limited, Astrue argues that giving survivor benefits to posthumously conceived children could reduce the benefits received by dependents for whom the insured clearly did provide.
Capato and her amici curiae challenge the discrimination that arises when, under Astrue’s interpretation, the Act would provide survivor benefits to the Capato twins if they were born while Nick was still alive. Capato argues that Congress would not have intended such an inconsistent result as to provide for her twins if they had been conceived by IVF the day before Nick’s death but deny all Social Security child survivor benefits simply because they were conceived shortly thereafter. Capato argues such an interpretation might create unhealthy incentives for individuals to begin the IVF procedure while their spouse is dying to preserve survivor benefits. Furthermore, the Cancer Legal Resource Center asserts the parents’ mutual decision and right to reproduce should be protected by treating the Capato twins as any other children. Capato insists that the uncertainty that ensues when a biological parent faces a life-threatening disease is exactly the sort of “unanticipated loss” for which the Act is intended to provide.
This case will resolve whether state intestacy laws control when the Social Security Administration determines the eligibility of posthumously conceived biological children of married parents for survivor benefits. Petitioner Astrue argues that the Social Security Act requires the SSA to apply state intestacy laws when determining whether an applicant is the child of an insured wage earner for the purpose of receiving survivor benefits. To the contrary, Respondent Capato contends that the Act’s plain language unambiguously entitles undisputed biological children of married parents to survivor benefits, without referring to state intestacy laws. The Supreme Court’s decision will clarify the Act’s mandate on the determination of survivor benefits eligibility, and possibly reflect on the balance between legislative rulemaking and unanticipated progress of modern science.
Robert F. McFay: Posthumously Conceived Children: Inheritance Rights in the 21st Century (Feb. 15, 2002)
Karen Salmon: Determining the Inheritance Rights of Posthumously Conceived Children (Spring 2007)
Trusts & Estates: Posthumously Conceived Children and Their Survivor Benefit (Oct. 21, 2009)
LII: Intestate Succession