Modern Families and Social Security Survivor Benefits

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Modern Families and Social Security Survivor Benefits

Modern families come in many different forms, including families with children posthumously conceived through assisted reproductive technologies (“ART”) and married same-sex couples.  Two recent cases have addressed the following question: “Who is a family member entitled to federal benefits?”  Under current law in Colorado, a child conceived within 3 years of a parent’s death would receive Social Security survivor benefits.  Under current federal law, the surviving spouse of a same-sex marriage would not receive Social Security survivor benefits.

On March 21, 2012, the United States Supreme Court held that twins conceived through in vitro fertilization and born 18 months after their father’s death were not entitled to Social Security survivor benefits.  Astrue, Commissioner of Social Security v. Capato, On Behalf of B.N.C. Et Al.,566 U.S. No. 11-159 (U.S. Mar. 21, 2012).  The Court reached this decision with relative ease because the Social Security Act looks to state law.  42 U.S.C. § 416(h)(2)(A).  Under Florida’s intestacy law, the twins would not inherit.  Under Colorado law, the twins would inherit.  Colorado updated its law in 2010 to provide that children conceived within 3 years of the parent’s death would inherit.  In adopting this law, Colorado struck a balance between providing finality for estates, and providing grieving widows adequate time to decide whether to use stored genetic material.

On May 31, 2012, a federal appeals court held that denial of federal benefits to same-sex married couples under the Defense of Marriage Act (“DOMA”) is unconstitutional.  Commonwealth of Massachusetts v. United States Department of Health and Human Services, Et Al., No. 10-2204 (1st Cir. May 31, 2012) did not address the more controversial part of DOMA, which exempts states from recognizing the same-sex marriages solemnized in other states.  However, Massachusetts addressed DOMA’s denial of federal benefits to same-sex couples, e.g., the right to file joint tax returns, which can lessen tax burdens, and the right to collect Social Security survivor benefits.  The court was convinced both by the “disparate impact on minority interests” and DOMA’s extensive intrusion into domestic relations, a traditional area of state regulation.  The United States Supreme Court will probably review the constitutionality of DOMA in the next few years.

The law affecting non-traditional families is rapidly changing.  Please contact our Denver estate planning attorneys at (303) 991-4676 if you would like to find out how it impacts you and your loved ones.

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