## Facts

- Janice Schafer and Don Schafer married in 1992; Don was later diagnosed with cancer.
- Before cancer treatment, Don stored sperm for possible later conception by Janice.
- Don died domiciled in Virginia a few months after the sperm was stored.
- About seven years after Don’s death, Janice conceived through in vitro fertilization using Don’s stored sperm and gave birth to W.M.S., Don’s biological child.
- Janice applied for Social Security survivor’s insurance benefits on W.M.S.’s behalf.
- The Social Security Administration denied the claim, applying 42 U.S.C. § 416(h)(2)(A) and concluding that W.M.S. did not qualify as Don’s “child” because Virginia intestacy law did not permit inheritance by a child born more than 10 months after the father’s death.

## Issues

1. Whether, under 42 U.S.C. § 416(h)(2)(A), “child” status for Social Security survivor benefits turns on the claimant’s ability to inherit under the intestacy law of the insured’s state of domicile at death.
2. Whether a posthumously conceived biological child born years after the wage earner’s death qualifies as a “child” for survivor benefits when the applicable state intestacy law denies inheritance rights to such a child.

## Decision

- The Fourth Circuit affirmed the judgment upholding the SSA’s denial of survivor benefits.
- The court held the SSA reasonably construed § 416(h)(2)(A) to require use of the decedent’s domicile state intestacy law to determine “child” status for survivor benefits.
- Applying Virginia intestacy law, the court concluded W.M.S. could not inherit from Don because he was born well beyond the state’s posthumous-birth time limit.
- The court rejected an alternative standard based on biology and the decedent’s intent as inconsistent with the statutory scheme.

## Legal Principles

- For Social Security survivor benefits, § 416(h)(2)(A) generally directs the Commissioner to determine “child” status by applying the intestacy law of the state where the insured was domiciled at death.
- When state intestacy law does not recognize inheritance rights for a posthumously conceived child born outside a statutory time window, the claimant is not a “child” for survivor-benefit purposes under § 416(h)(2)(A).
- Courts will not create an intent-based or biology-only exception to § 416(h)(2)(A) absent statutory authorization; changes to accommodate posthumous conception are for legislatures.

## Conclusion

The Fourth Circuit held that a posthumously conceived child born years after the insured’s death was not eligible for Social Security survivor benefits because, under § 416(h)(2)(A), “child” status depended on Virginia intestacy law, and Virginia law did not permit the child to inherit from the deceased wage earner.


Schafer v. Astrue, 641 F.3d 49 (4th Cir. 2011)