VERNOFF v. ASTRUE, 08-55049

In Vernoff v. Astrue 9 Cir No. 08-55049, the 9th Circuit Court, June 17, upheld a decision by the Social Security Administration [SSA] not to award survivor benefits to the artificially conceived son of California resident Gabriela Vernoff.  The child was born three years after the death of Vernoff’s husband via artificial insemination.  Vernoff then filed claim with the SSA seeking child-survivor benefits for the child-survivor benefits for her son and mother-of-survivor benefits for herself.   SSA denied her claim. Vernoff appealed to an administrative law judge who upheld the SSA’s decision.   She then appealed to the District Court.

The 9th Circuit Court had recently decided in Gillett-Netting (9 Cir 2004) 371 F.3d 593 that posthumously conceived children are eligible for SSA survivor benefits, but the Court affirmed the SSA’s decision in Vernoff asserting that the child was not dependent on the father when he died.  Unlike in Gillett, which was decided in Arizona where a biological tie is sufficient to establish paternity, California law requires a relationship between father and son.   The Court discarded Vernoff’s argument that intestacy laws established a parental link noting that Vernoff’s husband did not agree to the posthumous conception, and that the conception took place three years after his death, thus disqualifying the child from intestate inheritance.

The court’s decision can be found here.