No survivor's benefits for posthumously conceived

Associated Press Modified: November 16, 2012 at 1:31 pm •  Published: November 16, 2012
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Amen's lawsuit also argued that even if Nebraska's law is found to apply only to those children conceived during the father's lifetime, an exception should be made for Amen's child, because she was conceived and born within nine months of Josh Amen's death — the same time frame as a naturally conceived child. To deny the child benefits, the lawsuit said, would violate the equal protection clause of the Nebraska Constitution.

Attorneys for the Social Security Administration countered that Nebraska law states plainly that only a child conceived before a father's death but born after can inherit.

The Nebraska Supreme Court on Friday agreed, saying that a child conceived after a biological father's death does not "survive" the parent, and therefore is excluded from inheriting from the father's estate under Nebraska law.

"Further, such a child is unambiguously excluded from inheriting under (state law) because she was not conceived prior to her father's death," Judge Michael McCormack wrote for the state's high court. "Our answer is consistent with at least four other courts that have interpreted the same, or similar, afterborn heirs statutes to exclude posthumously conceived children."

The state Supreme Court refused to address the merits of Amen's constitutional challenge, saying it was not asked by the federal court to address that issue and, therefore, did not have jurisdiction to take up that challenge.

Amen's attorney, Maureen McBrien of Boston, said Friday she respects the ruling, even if she disagrees with it.

"I think it's unfortunate for my client," she said.

The case is still pending in U.S. District Court, and the question of the law's constitutionality is still before the federal court, McBrien said.

The federal attorney, Karen Seifert with the U.S. Department of Justice, did not immediately return a message left Friday seeking comment on the decision.