The law will always struggle to keep up with technology, it seems. With medical technology advancing at such a rapid pace, probate law will likely be poked and prodded until, at some time in the future, it can accommodate yesterday's innovation. While in vitro fertilization has been around for a while, a key issue about death benefits is on the verge of heading to the Supreme Court. In one recent case, Florida inheritance law is a key issue.

The case involves a woman whose husband froze sperm before he was treated for cancer. He died in 2002, in Florida. The couple's twins were born 18 months later. The widow is seeking Social Security survivor benefits for her children.

The case was filed in New Jersey, because, the widow said, she and her husband planned to move there before he died. The lower court ruled against the children, saying that the Social Security Administration should not consider them his legal children for benefits purposes. The 3rd U.S. Circuit Court of Appeals, however, unanimously agreed that there was no doubt the twins were the decedent's biological children.

Social Security regulations not only require that the children be the biological children of the decedent, but they must also be "dependent or deemed dependent" at the time of their father's death. The court sent this question back to the lower court.

The Social Security Administration has approved benefits for children conceived after their fathers died to collect benefits in California and six other states, thanks to a decision of the 9th U.S. Circuit Court of Appeals. So they qualify in the 9th Circuit, but may not qualify in the 3rd?

The attorney for the widow argues that treating the families differently from state to state is unconstitutional. The Social Security Administration counters that its dependency rules follow state inheritance laws -- and that's where Florida comes into the mix.

According to court documents, Florida law specifically prohibits so-called "posthumous children" from inheriting from their father, unless they are named in the will. The twins in this case were not included in the will. In New Jersey, they can be considered heirs. The lawsuit was filed in New Jersey, and the widow explained that they had planned to move there. The district court found that the will was executed in Florida, so Florida inheritance law applies.

The outcome of the case may very well have an effect on Florida law. This state, too, may have to catch up to technology.

Source: Associated Press, "NJ mom seeks late dad's benefits for in vitro kids," 01/06/11