Reproductive technologies have created any number of questions unheard of under existing law. Many states have enacted statutes to anticipate these issues, none more so than Florida. When a Federal issues arises, such as entitled to government benefits, the Federal government often defers to state law on issues of property rights, inheritance, and even the definition of who is a person. In Steel v. Comm’r of Soc. Sec., SC2022-1342 (Fla. 2024), the Florida Supreme Court was asked by the United States Circuit Court for the Eleventh Circuit to answer questions under one of Florida’s reproductive technology statutes to determine entitlement to Social Security benefits of a child conceived after the death of the wage earner.
Inheritance Rights of Children Conceived Post-Death in Florida
Florida law requires a written agreement for couples utilizing certain reproductive technologies, and provides default rules in the absence of a written agreement. Section 742.17(4) provides that a child conceived after death of the Decedent shall not inherit, unless the child has been provided for by the decedent’s will.
742.17 Disposition of eggs, sperm, or preembryos; rights of inheritance.—A commissioning couple and the treating physician shall enter into a written agreement that provides for the disposition of the commissioning couple’s eggs, sperm, and preembryos in the event of a divorce, the death of a spouse, or any other unforeseen circumstance.
(1) Absent a written agreement, any remaining eggs or sperm shall remain under the control of the party that provides the eggs or sperm.
(2) Absent a written agreement, decisionmaking authority regarding the disposition of preembryos shall reside jointly with the commissioning couple.
(3) Absent a written agreement, in the case of the death of one member of the commissioning couple, any eggs, sperm, or preembryos shall remain under the control of the surviving member of the commissioning couple.
(4) A child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or preembryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will.
In the Steele case, the Decedent deposited sperm with a facility and died. His surviving spouse used the sperm and conceived a child. The child’s mother applied for social security survivor benefits, as the child of a deceased wage earner. The Social Security Administrative law judge and District Court determined that the child was not legally the child of the Decedent. The District Court considered the inheritance rights of the child in reaching its decision. On appeal, the Eleventh Circuit asked for guidance from the Florida Supreme Court on the question of the inheritance rights of the child.
Specifically, the Eleventh Circuit asked for answers to the following questions:
(1) Under Florida law, is P.S.S. ‘provided for’ in the decedent’s will within the meaning of Fla. Stat. § 742.17(4)?
(2) If the answer is yes, does Florida law authorize a posthumously conceived child who is provided for in the decedent’s will to inherit intestate the decedent’s property?
The Decedent’s will devised all of his property to his surviving spouse. If deceased, the estate was left to his “then living” children.
The Florida Supreme Court analyzed the questions as follows:
Under the statute, a will must “provide[] for” a posthumously conceived child in order for that child to “be eligible for a claim against the decedent’s estate.” Id. The term “provided for” is not defined in the statute or in any other part of chapter 742; nor have we had occasion to consider it in the context of this statute.
In Ganier’s Estate v. Ganier’s Estate, 418 So.2d 256, 258 (Fla. 1982), we considered the pretermitted-spouse statute, which protects “a spouse whom the testator . . . marrie[s] after executing a will” from “inadvertent disinheritance.” Id.; cf. § 732.301, Fla. Stat. (1977) (pretermitted-spouse statute).[3] By its terms, that statute does not apply if the surviving spouse is “provided for” in the relevant will. In interpreting this term, we held: “[A] spouse has not been ‘provided for,’ within the meaning of section 732.301(2), unless the testator both provided for a person named in the will executed before marriage and made such provision in contemplation of marriage to that named person.” Ganier’s Estate, 418 So.2d at 260 (emphasis added).
We think that our interpretation of “provided for” in that case has some relevance here since giving something to someone encompasses contemplation of the recipient. Thus, in the context of section 742.17, contemplation of the post-death conception of a child would be necessary in order for that child to be provided for in the will.
Therefore, based on our analysis above, we conclude that “provided for” in section 742.17(4) means that the testator actually left something to the posthumously conceived child through the will. Or, put another way, the child must have some inheritance right under the will. As part of this requirement, the will must show that the testator contemplated the possibility of a child being conceived following his or her death.
Assessed against this standard, Mr. Steele’s will does not “provide for” P.S.S. No part of the will acknowledges the possibility of children being conceived after Mr. Steele’s death. To be sure, the will references afterborn or adopted children. But that mention of later-born children, as we read Mr. Steele’s will, refers most naturally to children born after his will was drafted but conceived before his death, i.e., when the dispositional portions of the will create vested rights. See § 732.514, Fla. Stat. (2019); see also § 732.106, Fla. Stat. (2019) (defining afterborn heirs in a similar fashion). Thus, this reference to later-born children would not cover P.S.S., who was conceived after Mr. Steele’s death.
But, even if we found that post-death conception was in some generic sense contemplated by Mr. Steele, P.S.S. could not have received anything under the will. Mr. Steele’s will conveyed all relevant property to Ms. Steele. In the event that Ms. Steele had died before Mr. Steele, the tangible personal property would have been distributed to his “then living children.” By its terms, this fallback provision only applied to children living at the time Mr. Steele died and necessarily excluded any posthumously conceived children, like P.S.S. Therefore, as it was impossible for P.S.S. to inherit anything from the will, it is clear that Mr. Steele did not provide for P.S.S. as contemplated by section 742.17(4).
