The Supreme Court of New Hampshire rules that a child conceived after her father’s death through artificial insemination is ineligible to inherit from him as his surviving issue. Khabbaz v. Commissioner. (N.H., No. 2006-751, Aug. 9, 2007).
After being diagnosed with a terminal illness, Rumzi Brian Khabbaz banked his sperm so his wife, Donna M. Eng, could conceive a child through artificial insemination. Mr. Khabbaz executed a consent form stating that his wife could use the sperm to achieve pregnancy and that it was “his desire and intent to be legally recognized as the father of his child to the fullest extent allowable by law.” Christine C. Eng Khabbaz was conceived by artificial insemination and was born more than two years after Mr. Khabbaz’s death. Ms. Eng, on behalf of Christine, subsequently filed for Social Security survivor’s benefits based on state intestacy law.
The Social Security Administration denied Ms. Eng’s application based on an interpretation of New Hampshire’s intestacy distribution statute. Ms. Eng appealed, arguing that Christine is a “surviving issue” within the meaning of the New Hampshire statute and that Mr. Khabbaz’s death “ended the marriage, leaving Christine born to unwed parents and eligible to inherit from her father.” The U.S. District Court for the District of New Hampshire asked the Supreme Court of New Hampshire to rule on the question of whether a child born in this manner may inherit from her father as his “surviving issue.”
The court finds that Christine cannot be considered a “surviving issue” because she was conceived and born more than a year after Mr. Khabbaz’s death. The intent of the legislature was to create “a statutory scheme under which those who survive a decedent’s death – that is, those who remain alive at the time of the decedent’s death – may inherit in a timely and orderly fashion contingent upon who is alive.” Further, the court rejects the contention that Christine is an illegitimate child. Accordingly, the court holds that Christine may not inherit from her father’s estate as a surviving issue
