The Heels of Recent Supreme Court Decision: Maryland Governor’s Determination of “Child” Now More Important than Ever


In a recent post, we discussed legislation passed by both the Maryland Senate (SB71) and House (HB101) to alter the definition of “child.”  Today, the Governor approved the legislation, and it will take effect on October 1, 2012.  “Child” now includes infants who are genetically conceived from an individual’s genetic material, if the individual consented in advance, and when certain statutory requirements are met.  Furthermore, if a posthumously conceived infant is born within two years after the death of his or her parent, the infant is entitled to inherit under Maryland intestacy laws as if the infant had been born during his or her parent’s lifetime.  The significance of this change is highlighted by yesterday’s Supreme Court’s decision in Astrue v. Capato.

The Supreme Court ruled that twins conceived of their late father’s genetic material were not entitled to Social Security survivor benefits because they did not qualify as “children” prior to Mr. Caputo’s death or under Florida State inheritance laws. In this case, the Supreme Court deferred to state law, here Florida, where Mr. Capato died and where the children were conceived eighteen months later. In other words, because Florida law did not consider the twins to be Mr. Caputo’s children (as of the date of his death), the the Social Security Administration was required to follow the state law and deny Social Security survivor benefits for the twins.

It’s a sad case. Mr. Capato died of esophageal cancer approximately three years after marrying Mrs. Capato. They conceived one child naturally and wanted more together. This case is likely the beginning of a series of cases dealing with posthumous conception as technology continues to evolve this possibility. The newly minted Maryland legislation means that families situated similarly to the Capatos will not necessarily meet the same fate in this state.

– Gary Altman, Esq., Adam Abramowitz, Esq. and Coryn Rosenstock

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