More on Astrue v. Capato

May 31, 2012

Authored by: Stephanie Moll and Steve Dawson

As we told you a couple of weeks ago, the Supreme Court issued a decision in Astrue v. Capato, ruling that Robert Capato’s posthumously-born twins were not entitled to receive Social Security survivors benefits as his children. Now that you’ve had a chance to read the case, we thought we’d delve a little more deeply into the Court’s ruling.

Karen Capato gave birth to twins eighteen months after her husband, Robert Capato died of esophageal cancer. Prior to undergoing treatment, Robert froze some of his sperm in case the chemotherapy rendered him sterile. Despite aggressive treatment, Robert died in March 2002, a resident of Florida. Shortly after his death, Karen began in vitro fertilization using Robert’s sperm and conceived, giving birth to twins in September 2003.

Karen attempted to claim survivors insurance benefits on behalf of the twins. The Social Security Administration (“SSA”) denied her application. The U.S. District Court for the District of New Jersey (she moved to New Jersey after Robert’s death) affirmed the agency’s decision, but the Court of Appeals for the Third Circuit reversed the decision.

The Third Circuit held that, “under Section 416(e). . . ‘the undisputed biological children of a deceased wage earner and his widow’ qualify for survivors benefits without regard to intestacy law.”  The Third Circuit agreed with Karen’s reliance on the Social Security Act’s initial definition of “Child” found in 42 U.S.C. s 416(e), which defined “Child” as “the child or legally adopted child of an [insured] individual.”

The Supreme Court, and the SSA, however, disagreed with the Third Circuit, identifying section 416(h)(2)(A), “which provides, ‘In determining whether an applicant is the child or parent of [an] insured individual for purposes of this subchapter, the Commissioner of Social Security shall apply [the intestacy law of the insured individual’s domiciliary State].'”   Sections 416(h)(2)(B) and (C) provide further criterion that can overcome the failure to meet section 416(h)(2)(A)’s definition of “Child” but neither were applicable to the case.

Through the years, the SSA has promulgated regulations interpreting these provisions.  The SSA closely tracked the definition in the Act when defining the insured’s “natural child”.  The Regulations provide that an applicant may qualify for benefits as a “natural child” by meeting one of four conditions, including the provision applicable to this case: the applicant “could inherit the insured’s personal property as his or her natural child under State inheritance laws”.   Karen and the Third Circuit found s. 416(h) to be irrelevant and that s. 416(e) alone was dispositive.

The Supreme Court stated that the SSA “finds a key textual cue in s. 416(h)(2)(A)’s opening instructions: ‘In determining whether an applicant is the child. . . of [an] insured individual for purposes of this subchapter,” the Commissioner shall apply state intestacy law.”  The Supreme Court held that, notwithstanding the lack of cross-reference to s. 416(h) in s. 416(e), the use of the word “subchapter” makes the provisions of s. 416(h) applicable to the entire Social Security Act, “which spans ss 401 through 434”, and thus applicable to s. 416(e).

In this case, since Robert died a Florida resident, Florida intestacy laws (the rule governing disposition of a person’s property if he or she dies without a will, including defining his or her heirs) would apply to determine whether the twins were entitled to Social Security survivors benefits. Florida intestacy law provides that a child born posthumously may inherit through intestate succession only if conceived during the decedent’s lifetime.  The twins were not conceived during Robert’s lifetime.

Once the Court determined that only those children entitled to inherit under state intestacy law fall within the definition of “natural child” for purposes of survivors benefits, the Supreme Court applied a rational-basis standard, quoting the Ninth Circuit in Vernoff v. Astrue, 568 F.3d 1102 (CA9 2009), which held that the “regime is ‘reasonably related to the government’s twin interests in [reserving] benefits [for] those children who have lost a parent’s support, and in using reasonable presumptions to minimize the administrative burden of proving dependency on a case-by-case basis.'” The Supreme Court continued, “The SSA’s interpretation of the relevant provisions, adhered to without deviation for many decades, is at least reasonable; the agency’s reading is therefore entitled to this Court’s deference under Chevron.”

It is important to note that, if Robert had not died a resident of Florida, while the Supreme Court’s ruling would have been the same, the results may have been different.  That is to say, each state’s intestacy laws differ and the Court held that it was the state’s law regarding posthumously born children that governs whether a child is entitled to survivors benefits.  Missouri law, for example, provides that “All posthumous children, or descendants, of the intestate shall inherit in like manner, as if born in the lifetime of the intestate”.  The Court also cites the California probate code, which allows a child to inherit if the child is in utero within two years of the deceased parent’s death and Colorado law, which states that a child must be in utero within three years or born within 45 months of a parent’s death.