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Massachusetts First on Modern Conception and Inheritance

JANUARY 7, 2002 VOLUME 9, NUMBER 28

If a husband and wife “bank” sperm so that the wife may conceive artificially, and the wife conceives through insemination of this sperm after the husband dies, will children resulting from such a pregnancy enjoy the inheritance rights of “natural” children in Massachusetts?

Last week the Massachusetts Supreme Judicial Court answered this question of law at the request of the federal District Court, holding that children conceived after their biological father’s death have the same rights to inherit as children conceived naturally if the genetic relationship is established and then proof is given that the deceased parent consented to the conception and to the support of the resulting children. Woodward v. Commissioner of Social Security (1/02/02) is the first published opinion of its kind in the country.

In 1993, Warren Woodward was diagnosed with and died from leukemia. He and his wife, Lauren, “banked” sperm before his treatment started given the likelihood of sterility thereafter. In late 1995, Ms. Woodward gave birth to twin girls conceived through artificial insemination of Mr. Woodward’s sperm.

Ms. Woodward applied for but was denied federal Social Security “child’s” and “mother’s” benefits in 1996. Despite a probate and family court adjudication of paternity, SSA denied the claim. Ms. Woodward asked the federal District Court to order release of the benefits, and that Court asked the Massachusetts Supreme Judicial Court to decide the legal question.

The Massachusetts high court finds middle ground between Ms. Woodward’s view that all children conceived posthumously should inherit under state law, and the government’s view that, since such children do not exist at the time of the parent’s death, they should be strictly denied the right to inherit.

The Woodward court embraces foremost the legislature’s concern that all children get the same rights and treatment under the law regardless of ‘accidents of birth.’ The Court reasons that children conceived posthumously should be entitled to the same rights to financial support as are children conceived before a parent’s death. However, the Woodward Court also weighs the state’s interest in timely administration of estates as well its interest in insuring the integrity of the decedent’s reproductive rights. The Court speculates that limitations periods for paternity claims against estates may affect claims from posthumously conceived children. The Court also emphasizes that genetic paternity alone is not enough; the deceased parent must have had some intent to have and to support children.

Arizona has no precedent to guide similar questions. Medical technology will continue to challenge a slow-moving legal system in all states unless state legislatures take the initiative.

Subjects: artificial insemination, paternity claims, Social Security Administration, Woodward v. Commissioner of Social Security
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Evidence Rebuts Presumption Of Paternity For Social Security

FEBRUARY 19, 2001 VOLUME 8, NUMBER 34

Sometimes lawyers remind their colleagues and clients that legal problems would arise less frequently if individuals would simply lead more orderly lives. Clarence Schoenfeld and family helped prove that basic legal maxim.

Clarence “Clay” Schoenfeld was 50 and a professor at the University of Wisconsin when he married graduate student Sheryl Smith in 1969. Prof. Schoenfeld had children from his first marriage, and he and his new wife agreed that they would not have children.

Eventually Mrs. Schoenfeld began to think she might want to have children after all. In 1978 she moved out of Prof. Schoenfeld’s home and began to look into the possibility of adoption or artificial insemination.

In 1979, on a vacation in Rome, Mrs. Schoenfeld met Michael Mandeville, who told her that he was a CIA operative and native Australian. Mr. Mandeville told Mrs. Schoenfeld that he would like to have children himself, but that his work prevented him from being a “traditional” father. The two agreed that they could solve one another’s dilemmas if Mrs. Schoenfeld was inseminated with Mr. Mandeville’s sperm.

Mrs. Schoenfeld used a syringe to complete the insemination and in October, 1980, her first child was born. Although Prof. and Mrs. Schoenfeld had been sexually intimate during the period of conception, the child’s birth certificate listed Mr. Mandeville as the father and he was given the Mandeville name. A month later Prof. and Mrs. Schoenfeld were legally separated, though not divorced.

In 1982 Mrs. Schoenfeld repeated the process, with the result that a child was born in October of that year. In May of 1985 her third child was born in the same manner. Mr. Mandeville was listed as the father on each birth certificate. Prof. Schoenfeld moved to a nursing home between the births of the second and third children, though he and Mrs. Schoenfeld were sexually intimate through the time of conception of each child.

Prof. Schoenfeld died in 1996. His widow applied to Social Security on behalf of her children for survivors benefits, and for herself as mother of his surviving children. After an initial round of hearings benefits were awarded, but the Social Security Administration ultimately determined that the children were not Prof. Schoenfeld’s and terminated benefits.

In Wisconsin as in most states (including Arizona), there is a strong presumption that children born during a marriage are the children of the mother’s husband. In this case, the Seventh Circuit Court of Appeals ruled on appeal, that presumption could be overcome by evidence of the actual paternity. Mrs. Schoenfeld’s children would not receive Social Security benefits as a result of her husband’s death. Schoenfeld v. Apfel, January 11, 2001.

Arizona law is similar to the law of Wisconsin. While there is a strong presumption that children born during a marriage are the children of the husband, it can be overcome by “clear and convincing” evidence to the contrary.

Subjects: paternity, Schoenfeld v. Apfel, Social Security Administration
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Elder Law Q&A

AUGUST 21, 1995 VOLUME 3, NUMBER 8

Question: What is the difference between guardianship, conservatorship, power of attorney and representative payee? Which is “better” for my clients and family members?

Answer: Guardianship and conservatorship are court proceedings. The former gives the guardian power over health care and placement decisions, the latter over financial matters. Both require that the subject of the proceeding be incapacitated or unable to handle matters without assistance. Neither can be done voluntarily, in the sense of signing up for guardianship or conservatorship (though the subject of the proceedings may choose not to object).

Power of attorney is the simple act of appointing someone else to handle one’s financial and/or medical matters. By definition, one must be competent to execute a power of attorney, and must be willing to delegate authority. By signing a power of attorney, one does not relinquish any control but merely designates another with overlapping authority; guardianship and conservatorship transfer authority to the guardian or conservator.

Representative payee is a designation given by some pension and other benefits programs. The most familiar of these, of course, is the Social Security Administration, which may determine that a beneficiary is unable to handle his or her own checks based on a doctor’s letter. “Rep payee” status does not require a court proceeding, and is therefore less intrusive and expensive.

Which of these choices is “better” for someone with diminished capacity usually makes no difference. Competent people can not have guardians or conservators appointed, and incompetent patients can not execute powers of attorney. Representative payee status is usually preferable to conservatorship, but will not work for bank accounts or other financial matters; representative payees are also not bonded or required to report in as much detail as conservators.

Send your legal questions to us for future discussion in Elder Law Issues.

Wrong Medications Cost Seniors Billions

Results of a study on elder care conducted by the U.S. General Accounting Office show that 17.5% of older Americans are prescribed inappropriate or questionable medications resulting in more than $20 billion of unnecessary medical costs. The GAO also said that older Americans are six times more likely to be prescribed the wrong medication than are their younger counterparts, and that 3% of all hospitalizations result from adverse drug effects.

The study concluded the reason for this phenomenon is that doctors in every field of specialization see some elderly patients on a regular basis, but are not necessarily versed in the unique needs of the elderly. The report calls for education and awareness of the specific needs of older Americans through:

counseling for patients about the proper drug usage;
managed care systems and primary physicians who monitor drugs prescribed by others treating the same patient; and
drug utilization and review systems, possibly through a pharmacy monitoring program.

Subjects: conservatorship, General Accounting Office, guardianship, POA, prescription drugs, representative payee, Social Security Administration
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ALTCS Eligibility Ordered

APRIL 24, 1995 VOLUME 2, NUMBER 42

Wayne Greer was an Arizona nursing home resident. Since his assets were limited, his wife Janet applied for Arizona’s long-term care Medicaid program, ALTCS.

ALTCS calculated that the Greers’ assets should be limited to $14,148.00. Unfortunately, Greer had an interest in a piece of real property he owned jointly with his brother and sister. The property had been listed for sale since 1987, but had not sold.

ALTCS denied eligibility based on the availability of the jointly-owned property in February, 1993. The final agency decision (after appeals) came in August, 1993. Despite Greer’s death, his widow brought a federal court action to challenge the ALTCS determination.

Last month (just over two years after Greer should have been found eligible) the Federal District Judge ruled in favor of Greer’s estate.

Despite regulations that provide for a new determination of the availability of property that is difficult to sell, the Court ruled that ALTCS is bound to use the same procedure adopted by the Social Security Administration in SSI determinations. Under that approach, the fact that the property had been continuously offered for sale without buyers was sufficient to establish eligibility. Estate of Greer v. Chen, USDistrict Court, Arizona, 3/27/95.

Ed. Note–the same result should have obtained if Greer’s siblings simply refused to sell their interests in the property. This case points out that regulations can be wrong, and even insoluble problems sometimes have more than one legal solution.

Delaying Social Security

Social Security is available, at a permanently reduced rate, to those who decide to retire at 62 instead of 65. Many seniors are confused about whether the early retirement option makes economic sense for them.

A recent article in The Wall Street Journal included a thoughtful economic analysis of the question, with suggestions on how to make the choice. More information is available to Elder Law Issues readers who want details, but the suggested factors to consider include:

Whether you are likely to work again.
The age of your spouse.
Your family health history.

Other available sources of retirement income, and the types of investments you currently have.
The author’s general advice? Despite common notions that it always pays off to delay retirement, for most people the economic considerations make it “pretty much a toss-up.”

Subjects: ALTCS, Medicaid, retirement, Social Security, Social Security Administration, Wall Street Journal
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