You asked us whether the Number Holder’s (NH’s) two posthumously conceived children
have inheritance rights under the applicable State’s intestacy law and therefore would
be entitled to child’s insurance benefits (CIB) on the NH’s earnings record.
It is our opinion that the intestacy laws of the State of Minnesota are applicable
and that the posthumously conceived children could not inherit from the NH under Minnesota
law. As such, the children are not entitled to CIB on the NH’s earnings.
The NH married A~ in Minnesota in April 2012. The NH and A~ resided together in Minnesota
until the NH’s death, which was in July 2013. However, A~ later conceived two of the
NH’s children through artificial means. Shortly before beginning treatment for leukemia
in June 2010, the NH had deposited samples of his semen at a sperm bank for cryopreservation.
A~ underwent in vitro fertilization in October 2013 and gave birth to twins, B~ and
L~, in May 2014. In December 2014, A~ filed an application seeking CIB on the NH’s
earnings record for B~ and L~.
An individual may be eligible for CIB if he is the “child” of the insured as defined
in section 216(e) of the Act, and was dependent upon the insured individual at the
time of his death. Social Security Act (Act) § 202(d)(1)(C), 42 U.S.C. § 402(d)(1)(C);
20 C.F.R. § 404.350. As relevant here, in determining the child-parent relationship status for the purposes
of CIB, the agency looks to the intestacy law of the State in which the insured individual
was domiciled at the time of his death. Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A);
20 C.F.R. § 404.355(a)(1); see also Astrue v. Capato ex rel. B.N.C., 132 S.Ct. 2021 (2012); POMS GN 00306.001(C)(1)(c) (a child conceived by artificial means after the insured’s death can only
be entitled to CIB if he has inheritance rights under applicable state intestacy law).
Although you requested our analysis of intestacy under North Dakota law, we do not
have any information suggesting that the NH resided anywhere other than Minnesota
during the last three years of his life. The NH and A~ were both residents of Minnesota
when they married in April 2012, and they continued living there together in Minnesota
until the NH’s death in July 2013. At the time of his death, the NH was domiciled in Minnesota. Accordingly, the child-relationship
status of B~ and L~ should be determined under Minnesota law.
In determining whether a natural child can inherit the insured’s property, the agency
applies the version of state law that is in effect when the claim is being adjudicated.
20 C.F.R. § 404.355(b)(4). For the purpose of intestate successions, Minnesota requires the existence of a parent-child
relationship as statutorily defined. Minn. Stat. § 524.2-116. In 2010, the Minnesota
legislature enacted provisions specifically addressing children conceived by assisted
reproduction. See Minn. Stat. § 524.2-120. Although a parent-child relationship exists in some circumstances
of assisted reproduction, Minnesota’s current intestacy law explicitly excludes children
of assisted reproduction that are posthumously conceived:
a parent-child relationship does not exist between a child of assisted reproduction
and another person unless the child of assisted reproduction is in gestation prior
to the death of such person. Minn. Stat. § 524.2-120(10).
B~ and L~ were not in gestation until October 2013, which was three months after the
NH’s death in July 2013. Accordingly, B~ and L~ could not inherit from the NH under
Minnesota’s intestacy law and are not eligible for CIB under the Act.
Since B~ and L~ could not inherit from the NH under Minnesota intestacy law, they
are not eligible for CIB under the Act.
John J. Lee
Regional Chief Counsel
Region VIII, Denver
By: Jessica Milano
Assistant Regional Counsel