The Supreme Court ruled that children conceived after the death of their father were not eligible for Social Security benefits.

Story highlights

Robert Capato developed cancer just months after marrying Karen Kuttner in 1999

Using in vitro fertilization, twins born 18 months after Caputo's death

Will didn't say if children born after his death could be legally declared his survivors

High court rules against Kuttner


A mother of twins born 18 months after the death of the biological father lost her Supreme Court appeal Monday, and the children are not eligible for survival benefits under Social Security.

A unanimous court gave “administrative deference” to the government when interpreting what the justices agreed was an ambiguous federal statute.

“We find the Social Security Administration’s reading better attuned to the statute’s text and its design to benefit primarily those the deceased wage earner actually supported in his or her lifetime,” said Justice Ruth Bader Ginsburg.

At issue was how the court should interpret the word “child” and whether state laws over wills and trusts are adequate to deal with evolving technology for in vitro fertilization.

Robert Capato developed esophageal cancer just months after marrying Karen Kuttner in 1999. Concerned the medical treatment could leave him sterile, Capato began depositing semen in a sperm bank. After his health improved, the couple conceived naturally and a son was born.

But the man’s condition later worsened and Capato died in March 2002. The confusion lies in the fact his final will did not specify whether children born after his passing could be legally declared his survivors. But a separate notarized document from the Capatos stated, “Any children born to us, who were conceived by the use of our embryos, shall in all respects and for purposes, including but not limited to descent of property, be children of our bodies.”

Karen Capato underwent the in vitro fertilization procedure and 18 months after her husband’s death, twin children were born. She then applied for Social Security survivor benefits, but the agency rejected the claim.

An administrative judge concluded the “domicile at death” for Robert Capato, the wage earner, was Florida, and that state did not provide for children conceived after the parent’s death.

A federal appeals court then found for Karen Capato, saying the twins were “children” within meaning of state law and Social Security regulations. The agency then appealed to the Supreme Court for review, which has now reversed.

The justices clearly appeared unsure during the March oral arguments over how to treat this relatively new category of offspring, and whether to put them in the same category as stepchildren or adopted children, when deciding survivor benefits.

“You lose if the statute is ambiguous,” Chief Justice John Roberts said at that time to the lawyer for the surviving parent. “Is there any reason we shouldn’t conclude based on the last hour that it’s at least ambiguous?”

Added Justice Elena Kagan: “It’s a mess.”

Justice Antonin Scalia was more direct. Federal policy “disfavors children who are born after the father has died. Which is in accord with the title of the statute: Survivors Benefits,” he said. “What is at issue here is not whether children that have been born through artificial insemination get benefits. It’s whether children who are born after the father’s death get benefits.”

Capato’s lawyer had argued advances in artificial insemination were something lawmakers could not have anticipated when they passed the Social Security Act in 1939 and should not continue to hinder his client’s ability to seek benefits.

Ginsburg in her ruling showed some sympathy for the mother, but said deference to state and federal law was required here.

“Tragic circumstances – Robert Capato’s death before he and his wife could raise a family – gave rise to this case,” she said. “But the law Congress enacted calls for resolution of Karen Capato’s application for child’s insurance benefits by reference to state intestacy law. We cannot replace that reference by creating a uniform federal rule the statute’s text scarcely supports.”

This decision is not likely to have an immediate widespread impact. Court records show only about 100 other federal benefit applicants in a similar situation as Capato.

But the justices passed up a chance to fully clarify what it means to be a “child” in relation to a parent, and whether current state and federal law was flexible enough to incorporate a growing range of technological conception possibilities. The opinion was narrowly focused on Capato’s experience.

The case is Astrue v. Capato (11-159).