MacNeil v. Berryhill
OPINION, affirm the district court s judgment, by JMW, DAL, GEL, FILED. [16-2189]
Case 16-2189, Document 49-1, 08/24/2017, 2109102, Page1 of 22
MacNeil v. Berryhill
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2016
(Argued: May 2, 2017
Decided: August 24, 2017)
SHARON MACNEIL, on her own behalf and on behalf of her minor
children A.T.M. and C.E.M.,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,
WALKER, LIVINGSTON, and LYNCH, Circuit Judges.
Plaintiff‐Appellant Sharon MacNeil (“MacNeil”) brought suit pursuant to
42 U.S.C. § 405(g) challenging a decision by the Commissioner of the Social
Security Administration that her children—twins conceived via in vitro
fertilization eleven years after her husband died—were ineligible for survivors’
insurance benefits. The United States District Court for the Northern District of
New York (Sharpe, J.) affirmed the agency’s decision, concluding that under the
applicable provisions of New York’s Estates, Powers and Trusts Law (“EPTL”)
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the children were not entitled to inherit under New York state intestacy law, and
so were not children of the deceased wage earner within the meaning of the
relevant Social Security Act provisions. We agree and accordingly AFFIRM the
district court’s judgment.
Judge LYNCH concurs in the judgment and in the opinion of the Court and
files a separate concurring opinion.
FARA TABATABAI (Hagit M. Elul, on the
brief), New York, New York, for
SANDRA M. GROSSFELD (Stephen P. Conte,
on the brief), New York, New York, for
Grant C. Jaquith, Acting United States
Attorney for the Northern District of New
DEBRA ANN LIVINGSTON, Circuit Judge:
Plaintiff‐Appellant Sharon MacNeil (“MacNeil”) conceived twins via in
vitro fertilization eleven years after her husband, the donor spouse, died. After
the children—A.T.M. and C.E.M.—were born, MacNeil filed applications for
child’s survivors’ benefits, based on her husband’s earnings history, with the
Social Security Administration (“SSA”). As relevant here, the SSA has
interpreted the governing statute—in an interpretation upheld by the Supreme
Court—to treat an individual as a child of the decedent‐insured, and thus
potentially eligible for survivors’ benefits, if that individual would inherit from
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the decedent under the intestacy law of the state in which the insured was
domiciled. An Administrative Law Judge (“ALJ”) denied the twins’
applications for benefits, concluding that, under the version of the New York law
in effect at the time of the decision, children conceived and born after a
decedent’s death were not entitled to inherit by intestacy.
MacNeil then filed suit in the United States District Court for the Northern
District of New York challenging this determination, and the district court
affirmed the agency’s view. We agree with the district court that, under the
applicable provisions of New York’s Estates, Powers and Trusts Law (“EPTL”) in
effect at and prior to the time of the agency’s final decision, A.T.M. and C.E.M.
were not entitled to inherit from the decedent in intestacy. In the absence of any
showing of other grounds for eligibility for child’s survivors’ benefits under the
Social Security Act, we affirm the judgment of the district court.
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I. Factual Background1
Sharon and Eric MacNeil were married on October 1, 1994, a year after
they graduated from college. Several months into their marriage, Eric was
diagnosed with non‐Hodgkin’s lymphoma at the age of 23. The couple,
knowing that the cancer might be terminal or that treatment might render Eric
sterile, decided to bank Eric’s sperm. Eric died intestate on May 24, 1996, at age
24. In June 2007, eleven years after Eric’s death, Sharon underwent in vitro
fertilization using the stored sperm. She gave birth to twins, A.T.M. and
C.E.M., on February 14, 2008.
II. Procedural History
On October 8, 2009, MacNeil filed separate applications for child’s
survivors’ benefits for her twins with the SSA, based upon the wage earnings of
their deceased father. The SSA denied these applications, and MacNeil then
sought a hearing before an ALJ. The only question presented before the ALJ
was a legal one: whether A.T.M. and C.E.M. qualified as “child[ren]” under the
The factual background presented here is derived from undisputed facts from
the administrative record of the agency proceedings, as filed by the SSA in the district
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Social Security Act. The ALJ concluded that, though it was uncontested that the
twins were biologically Eric MacNeil’s children, they were not entitled to inherit
under the applicable provisions of New York intestacy law because they were
conceived after Eric’s death. As a result, on February 14, 2013, the ALJ issued
two separate and identical decisions denying MacNeil’s applications for each of
her children. The SSA’s Appeals Council denied MacNeil’s paired petitions for
On November 18, 2014, MacNeil filed suit against the Commissioner of the
SSA in the United States District Court for the Northern District of New York,
seeking review of the agency’s final determination under 42 U.S.C. § 405(g).
The magistrate judge (Hummel, M.J.) issued a Report & Recommendation
(“R&R”) proposing that the SSA’s denial of benefits be affirmed. The district
court (Sharpe, J.) adopted the R&R in full and dismissed MacNeil’s complaint.
On June 24, 2016, MacNeil timely appealed.
When reviewing a final decision of the Commissioner in a Social Security
benefits case, this Court examines the administrative record de novo to determine,
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as relevant here, whether the SSA applied the correct legal standard. See Pollard
v. Halter, 377 F.3d 183, 188 (2d Cir. 2004); see also 42 U.S.C. § 405(g).
The Social Security Act affords “a monthly benefit for designated
surviving family members of a deceased insured wage earner,” including
children of the deceased. Astrue v. Capato ex rel. B.N.C., 566 U.S. 541, 132 S. Ct.
2021, 2027 (2012); see also 42 U.S.C. § 402(d). In a definitional section, the Social
Security Act provides that “[i]n determining whether an applicant is the child . . .
of a fully . . . insured individual for purposes of th[e] subchapter [governing, inter
alia, survivors’ benefits], the Commissioner of Social Security shall apply such
law as would be applied in determining the devolution of intestate personal
property . . . by the courts of the State in which [the decedent insured] was
domiciled at the time of his death.” 42 U.S.C. § 416(h)(2)(A). Thus, the SSA
has explained, an applicant for child’s survivors’ benefits may qualify if the
applicant “could inherit the insured’s personal property as his or her natural
child under State inheritance laws.” 20 C.F.R. § 404.355(a)(1); see also Capato, 132
S. Ct. at 2033‐34 (upholding the SSA’s interpretation as reasonable under Chevron
v. NRDC, 467 U.S. 837 (1984)).
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Under its internal regulations, the SSA applies the version of state law
most beneficial to the applicant, looking to “the version of State law that was in
effect at the time the insured died, or any version of State law in effect from the
first month for which [the applicant] could be entitled to benefits up until [the]
final decision on [the] application.” 20 C.F.R. § 404.355(b)(4). In adjudicating
the merits of the applications filed on A.T.M. and C.E.M.’s behalf, the ALJ
invoked the version of the EPTL in effect at the time of his decision in 2013, and
the parties agree that this version of the EPTL properly applies to this case.
The parties’ arguments on appeal center on two sections of New York’s
EPTL. Section 4‐1.1 provides the general rules for distribution of property “not
disposed of by will” via intestacy. See EPTL § 4‐1.1 (“The property of a
decedent not disposed of by will shall be distributed as provided in this
section.”). As relevant here, subsection (a) of Section 4‐1.1 sets out the basic
rules for allocating a decedent’s property “[i]f a decedent is survived by” various
relatives including the “spouse,” “issue,” “parents,” and “grandparents.” 2
For instance, this subsection provides that if a decedent is survived by a spouse
and issue, $50,000 and one‐half of the residue goes to the spouse with the balance to the
issue, whereas in the case of a decedent who is survived by one or both parents, no
spouse and no issue, the whole goes to the surviving parent or
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Subsection (b) then states that, in making an intestate distribution, the decedent’s
half‐relatives “shall be treated as if they were [full] relatives.” Id. § 4‐1.1(b).
Similarly, subsection (c), the subsection at the center of the dispute between the
parties in this case, also identifies individuals who are appropriately included as
members of the class of distributees. This subsection provides that
“[d]istributees of the decedent, conceived before his or her death but born alive
thereafter, take as if they were born in his or her lifetime.” Id. § 4‐1.1(c).
The second section, Section 4‐1.2, governs the circumstances under which
“non‐marital children” are considered legitimate issue under the provisions of
intestacy law. Under this provision, a “non‐marital child is the legitimate child
of his mother so that he and his issue inherit from his mother and from his
maternal kindred,” just as a marital child does. Id. § 4‐1.2(a)(1). A non‐marital
child can also be the legitimate child of his father “so that he and his issue
inherit” by the terms of this provision, but only in specified circumstances
including, as relevant here, where paternity is “established by clear and
convincing evidence,” such as “evidence derived from a genetic marker test.”
Id. § 4‐1.2(a)(2)(C)(i).
parents. EPTL § 4‐1.1(a).
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The agency argues that Section 4‐1.1(c), which specifically provides for
distribution of an intestate’s property to children conceived before the decedent’s
death who are born thereafter, by implication excludes those children conceived
after the decedent’s death. MacNeil argues, in contrast, that her twins are
entitled to inherit as “non‐marital children” under Section 4‐1.2 because Eric’s
biological paternity has been clearly established by genetic testing. In her view,
Section 4‐1.1(c) does not prevent posthumously conceived children from
inheriting via intestacy because the subsection does not expressly state that only
distributees conceived before the decedent’s death are entitled to inherit.
Moreover, she argues, Section 4‐1.2, which provides in relevant part that “[a]
non‐marital child is the legitimate child of his father so that he . . . inherit[s] . . . if
paternity has been established by clear and convincing evidence,” such as
“evidence derived from a genetic marker test,” is applicable by its terms.
Id. § 4‐1.2(a)(2)(C)(i).
“The starting point of statutory interpretation is, of course, plain
meaning.” People v. Owusu, 93 N.Y.2d 398, 401 (1999). “It is well settled that ‘a
statute or legislative act is to be construed as a whole, and all parts of an act are
to be read and construed together.’” N.Y. State Psychiatric Ass’n, Inc. v. N.Y.
Case 16-2189, Document 49-1, 08/24/2017, 2109102, Page10 of 22
State Dep’t of Health, 19 N.Y.3d 17, 23‐24 (2012) (quoting N.Y. Stat. § 97).
Interpretation of one provision of a statute thus “cannot be divorced from its
statutory context.” In re Avella v. City of New York, 2017 WL 2427307, 2017 N.Y.
Slip. Op. 04383, at *7 (June 6, 2017). “[E]ach section . . . must be considered and
applied in connection with every other section . . . so that all will have their due,
and conjoint[,] effect.” N.Y. State Psychiatric Ass’n, 19 N.Y.3d at 24; see also N.Y.
Stat. § 98 (“All parts of a statute must be harmonized with each other . . . and
effect and meaning must . . . be given to the entire statute and every part and
word thereof.”). As a result, “a statutory construction which renders one part
meaningless should be avoided.” In re Springer v. Bd. of Educ. of City Sch. Dist. of
City of N.Y., 27 N.Y.3d 102, 107 (2016) (quoting Rocovich v. Consol. Edison Co., 78
N.Y.2d 509, 515 (1991)). Keeping these principles firmly in mind, we turn back
to the parties’ arguments.
As we have explained, Section 4‐1.1 provides the general rules for intestate
distribution. Section 4‐1.1’s first subsection delineates the hierarchy for
distributing the estate to the class of individuals “surviv[ing]” the decedent.
EPTL § 4‐1.1(a)(1) (“If a decedent is survived by: (1) A spouse and issue . . . .”
(emphasis added)). Survive, when used as a transitive verb, means “[t]o live
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longer than; [or] outlive.” American Heritage Dictionary of the English
Language 1743 (4th ed. 2000). More specifically, Black’s Law Dictionary defines
“surviving” as “[r]emaining alive; living beyond the happening of an event so as
to entitle one to a distribution of property or income.” Black’s Law Dictionary
1675 (10th ed. 2010). That language necessarily limits the class of distributees
because the only individuals who could “live longer than” the decedent or
“remain alive” after his death are those already alive at the time of the decedent’s
Read in this context, Section 4‐1.1(c)’s import is clear. That subsection
provides that distributees “conceived before [the decedent’s] death but born
alive thereafter take as if they were born in his or her lifetime.” Said differently,
Section 4‐1.1(c) deems those children conceived before a decedent’s death but
born alive thereafter as having “survived” the decedent, enabling these
individuals to take by operation of Section 4‐1.1(a). The treatment of other
potential distributees born after the death of the decedent is determined by
omission: children who did not “survive” the decedent, or are not otherwise
deemed by statute to survive the decedent, do not inherit in intestacy.
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MacNeil argues that requisite statutory authorization for inheritance by
genetic children conceived after—even long after—the death of the decedent is
found in Section 4‐1.2. Under her proposed interpretation, pursuant to
Section 4‐1.2, a man’s genetic child may always inherit regardless of the timing
and circumstances of conception, so long as paternity is clearly established by
genetic testing. That argument misreads Section 4‐1.2, which, by its terms,
supplies an expansive definition of child legitimacy but nowhere indicates that it
is meant to expand the class of distributees entitled to take from the estate of an
intestate decedent temporally. In other words, whereas, as the ALJ recognized,
Section 4‐1.1(c) explicitly operates as an exception to “an otherwise clear
demarcation between the rights of those born during the decedent’s lifetime and
the rights of those who [we]re not” by expanding the class of distributees born
during the decedent’s lifetime to encompass those born after his death, so long as
conceived while he lived, see Admin. Rec. 21, 30, Section 4‐1.2 does no such thing.
That provision does not say that a child born after the death of the genetic father
may inherit in intestacy, but instead provides the circumstances under which “[a]
non‐marital child is the legitimate child of his father,” including, among others,
when “clear and convincing evidence” of genetic paternity exists. EPTL § 4‐1.2.
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Particularly set against the clear language of Section 4‐1.1(c), which explicitly
provides for expansion of the class of distributees based on time of conception,
Section 4‐1.2(a)(2) cannot reasonably be read to similarly expand the class.
In effect, MacNeil seeks to isolate one of Section 4‐1.2’s several
mechanisms for establishing paternity and to have this subprovision serve as the
general intestate distribution rule for children born after a genetic father has
passed away, relegating Section 4‐1.1(c) to a provision that governs in the narrow
case in which paternity cannot be clearly established. There is no reason,
however, why a distribution rule drastically expanding the class of distributees
to include children conceived after the death of their genetic father would be
buried in a subparagraph to Section 4‐1.2 when the statute explicitly provides
(narrowly) for such a temporal expansion in Section 4‐1.1(c), the preceding
section. Nor is it clear why, under MacNeil’s interpretation of Section 4‐1.2, the
child of an intestate father who is conceived after his death may establish genetic
paternity (and so, on her theory, inherit), without affording any such mechanism
for establishing the genetic maternity for a child born after the death of a
The differential effect of MacNeil’s reading of Section 4‐1.2 on men and women
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MacNeil’s interpretation is also inconsistent with Section 4‐1.2’s
amendment history. Prior to 2010, Section 4‐1.2(a)(2), the specific paragraph on
which MacNeil relies, provided for inheritance by a non‐marital child in cases
where the child was able to establish (1) the “open and notorious”
acknowledgment of the child by the putative father during that father’s lifetime
and (2) that genetic testing or other clear and convincing evidence proved
paternity. See In re Davis, 812 N.Y.S.2d 543, 544‐47 (2d Dep’t 2006) (quoting
EPTL § 4‐1.2(a)(2)(C)); see also In re Poldrugovaz, 851 N.Y.S.2d 254, 257‐62 (2d
Dep’t 2008). A non‐marital child could also inherit if a “court of competent
jurisdiction” declared paternity “during the lifetime of the father,” EPTL
§ 4‐1.2(a)(2)(A), the father had “signed an instrument acknowledging paternity,”
or “a blood genetic marker test” establishing paternity had been administered
during the father’s lifetime. In re Davis, 812 N.Y.S.2d at 545 (quoting
§§ 4‐1.2(a)(2)(B),(D)). In 2010, the New York Legislature amended
is obvious. Under her reading, a man’s genetic children are entitled to inherit in
intestacy no matter how long after the man’s death they are born, whereas no clear
statutory mechanism exists in that section that would permit a woman’s genetic
children to secure the same entitlement. (Whether some other mechanism might exist
for establishing genetic maternity, see, e.g., T.V. v. N.Y. State Dep’t of Health, 929
N.Y.S.2d 139, 143‐150 (2d Dep’t 2011), is a matter that we need not address here, and
that the New York courts are unlikely to address in the present context given the
passage, discussed below, of EPTL Section 4‐1.3.)
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Section 4‐1.2(a)(2) to ease the evidentiary requirements for a non‐marital child to
establish legitimacy. Rather than requiring both clear and convincing evidence
of paternity (such as a genetic marker test) and open and notorious
acknowledgment, the 2010 amendments permitted a non‐marital child to
establish legitimacy by clear and convincing evidence, defined as including either
a genetic marker test or open and notorious acknowledgment. See Seaton v. Cty.
of Suffolk, 912 N.Y.S.2d 289, 291 (2d Dep’t 2010); 2010 N.Y. Sess. Laws Ch. 64
(A.7899‐A) (McKinney). MacNeil’s contention, therefore, amounts to an
argument that the amendment of a subparagraph of a statutory provision
dealing with paternity determinations served to revise the entirety of New
York’s intestacy scheme, creating a default pursuant to which children born
after—even decades after—their genetic father’s death are properly within the
class of distributees for purposes of intestacy. But “legislative bodies generally
do not ‘hide elephants in mouseholes,’” Cruz v. TD Bank, N.A., 22 N.Y.3d 61, 72
(2013) (quoting Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001)),
and MacNeil has given us no convincing reason to believe that New York’s
legislature did just that here.
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Our view of the proper interpretation of Sections 4‐1.1(c) and 4‐1.2(a)(2)
also coheres with the background rules underlying the EPTL. It is a very
long‐standing rule of New York law that an estate’s distributees are properly
determined as of the time of the decedent’s death. See In re Bump’s Will, 234
N.Y. 60, 64 (1922) (explaining that “heirs” in a will should “be interpreted in its
natural sense—those who are heirs at the death of the testator”). This
background rule, which fixes interests in an estate as of the time of the
decedent’s death, allows estates to determine their distributees and then close, so
serving the state’s “proper objective” of the “efficien[t]” and “orderly settlement
of estates.” See Trimble v. Gordon, 430 U.S. 762, 770‐71 (1977). And, under our
reading, Section 4‐1.1(c) gains effect specifically by affording a narrow exception
to this general background rule.
MacNeil’s interpretation—whereby posthumously conceived children may
inherit by intestacy no matter how long after their father’s death they were
born—runs, on the other hand, directly counter to this general rule. If, as
MacNeil suggests, a child conceived decades after the genetic father’s death may
inherit, an estate might forever remain open or subject to redistribution. For
example, if a decedent who dies intestate is survived only by his or her spouse,
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the entirety of the decedent’s estate goes to the spouse. EPTL § 4‐1.1(a)(2). If
that decedent is survived by his spouse and children, however, the spouse
receives “fifty thousand dollars and one‐half of the residue,” with the remainder
being distributed to the decedent’s issue. Id. § 4‐1.1(a)(1). Thus, in order to
accomplish the distribution contemplated in Section 4‐1.1(a) under her
interpretation of Section 4‐1.2, a spouse in Sharon MacNeil’s position could be
required to return half of the estate (saving fifty thousand dollars for herself) and
devise that portion to the children born long after her husband’s death.
Redistribution would become yet more complicated where grandchildren are
involved. See id. § 4‐1.1(a)(6) (discussing distribution via grandparents). As
the Supreme Court has observed, it is for precisely this reason that, in states that
do permit posthumously conceived children to inherit via intestacy, these rights
are generally qualified by time limits not present in either Section 4‐1.1 or 4‐1.2.
See Capato, 132 S. Ct. at 2031‐32.4
As an aside, dicta in Capato align with our interpretation of Section 4‐1.1(c).
There, the Supreme Court recognized that “[i]ntestacy laws in a number of States . . . do
provide for inheritance by posthumously conceived children.” Capato, 132 S. Ct. at
2032. Then, using a “but see” signal in an accompanying footnote, the Court cited
directly to Section 4‐1.1(c), suggesting that this provision, read most naturally, does not
grant such inheritance rights. See id. at 2032 n.9.
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In addition, though we recognize the hazards of using later‐adopted law to
construe the meaning of an earlier enacted provision, see Pension Benefit Guar.
Corp. v. LTV Corp., 496 U.S. 633, 650 (1990), we note that new Section 4‐1.3,
enacted in 2014 after the final agency decision in this case, is, as one would
expect given our analysis above, designed to provide a specific framework for
inheritance by children conceived by assisted reproductive technology after the
passing of their genetic parent.5 Pursuant to this provision, a “genetic child,”
defined as a “child of the sperm or ova provided by a genetic parent,” may
inherit by intestacy “if and when such child is born,” subject to certain
conditions. EPTL § 4‐1.3(a)(3). Among other things, for the child to inherit,
the genetic parent must execute a written instrument “not more than seven
years” prior to his or her death permitting the use of the genetic material for
purposes of posthumous conception, and the child must be “in utero no later
than twenty‐four months after the genetic parent’s death or born no later than
Though MacNeil requests that we ask the New York Court of Appeals to
resolve whether posthumously conceived children may inherit in intestacy and the SSA
does not oppose certification, we see no reason to certify in this case. First,
“certification is not proper” where “there is no split of authority [on a question] and
sufficient precedents exist for us to make a determination.” Schoenefeld v. New York,
748 F.3d 464, 470 n.5 (2d Cir. 2014) (internal quotation marks and notations omitted).
Second, after the adoption of Section 4‐1.3, the New York law governing future cases is
clear, and thus we cannot say that the question is of sufficient importance to the state
and state public policy choices to warrant certification. See id. at 470.
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thirty‐three months after the genetic parent‘s death.” Id. §§ 4‐1.3(b)(1)(A), (b)(4).
Moreover, recognizing the implications of Section 4‐1.1(c) described above,
Section 4‐1.3(b) specifically provides that a “genetic child” is deemed issue of the
genetic parent for purposes of inheritance law “notwithstanding paragraph (c) of
[S]ection 4‐1.1 of this part,” language notably absent from Section 4‐1.2(a)(2)(C),
the provision for non‐marital children on which MacNeil relies.
Finally, MacNeil fails to address the impact that her interpretation of
Section 4‐1.2 would have on the interpretation of other provisions of the EPTL.
See, e.g., EPTL §§ 2‐1.3 (addressing dispositions to adopted and posthumous
children as members of a class); 5‐3.2 (concerning the effect of the birth of a child
after the execution of a will); 5‐4.5 (concerning the rights of family members
resulting from wrongful acts causing the decedent’s death). For example,
Section 5‐3.2(b) defines an “after‐born child” as a “child of the testator born
during the testator’s lifetime or in gestation at the time of the testator’s death.”
The provision goes on to state that, for purposes of the section, “a non‐marital
child . . . shall be considered an after‐born child . . . where paternity is established
pursuant to [S]ection 4‐1.2.” Id. § 5‐3.2(b) (emphasis added). The most natural
reading of this definitional provision (as with our interpretation of the
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interaction between Sections 4‐1.1(c) and 4‐1.2) is that a non‐marital child is thus
also included in the class of after‐born children—who are children born “during
the testator’s lifetime or in gestation at the time of the testator’s death”—so long
as paternity can be established under the rules provided in Section 4.1‐2.
But, under MacNeil’s reading, Section 4‐1.2 operates to permit a genetic
child born long after his or her father’s death to inherit. Under this view, the
definition provided in Section 5‐3.2(b) descends into logical impossibility: an
“after‐born child” is both a “child of the testator born during the testator’s
lifetime or in gestation at the time of the testator’s death” and a child born long
after the testator has passed away.6 Thus, by ignoring the effect of her reading
on other statutory provisions incorporating Section 4‐1.2, MacNeil muddies the
“clear and unambiguous” meaning of a section of the statute which, it bears
repeating, nowhere permits a posthumously conceived child to inherit. See
People v. Pabon, 28 N.Y.3d 147, 152 (2016).
And if MacNeil would argue that Section 4‐1.2 operates differently when
incorporated into Section 5‐3.2(b) than it does in the intestacy context, she fails to either
provide any textual evidence in support of that proposition or answer the further
question why, in the absence of statutory language indicating otherwise, Section 4‐1.2
should operate differently in these two contexts.
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In Capato, the Supreme Court observed that the Social Security Act was
designed specifically to “provide dependent members of a wage earner’s family
with protection against the hardship occasioned by the loss of the insured’s
earnings”—a specific hardship to which those conceived after the death of the
wage earner, and thus never reliant on his support, are not subject. 132 S. Ct.
at 2032. Citing the fact that “[i]ntestacy laws in a number of States . . . do
provide for inheritance by posthumously conceived children,” the Court noted in
Capato that “the intestacy criterion yields benefits to some children outside the
Act’s central concern.” Id. The Court concluded, however, that “[i]t was . . .
Congress’ prerogative to legislate for the generality of cases . . . by employing
eligibility to inherit under state intestacy law as a workable substitute for
burdensome case‐by‐case determinations whether the child was, in fact
dependent on her father’s earnings.” Id.
Here, we conclude that New York’s intestacy law, as it existed in 2013 at
the time of the agency’s final determination, did not permit children conceived
posthumously to inherit via intestacy. This determination, which requires the
further conclusion that the MacNeil twins’ applications for benefits were
properly denied, is dispositive of the present appeal. Having considered the
Case 16-2189, Document 49-1, 08/24/2017, 2109102, Page22 of 22
remainder of MacNeil’s arguments and finding them to be without merit, and for
the foregoing reasons, we AFFIRM the judgment of the district court.
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