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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11656
____________________
KATHLEEN STEELE,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cv-02522-VMC-AEP
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2 Opinion of the Court 20-11656
____________________
Before NEWSOM, BRANCH, and LAGOA, Circuit Judges.
LAGOA, Circuit Judge:
This case requires us to apply old statutes to new problems.
Philip Steele cryopreserved several sperm samples before his death.
His surviving wife, Kathleen Steele, relied on those sperm samples
and in vitro fertilization to conceive a child, P.S.S. She then sought
child’s insurance benefits (“CIB”) under the Social Security Act on
behalf of P.S.S. The Social Security Administration (the “Admin-
istration”) denied the claim for CIB, and the administrative law
judge, the magistrate judge, and the district court all upheld the
Administration’s denial of the claim.
The central issue in this appeal is whether P.S.S. is entitled
to recover CIB under the Social Security Act. See
42 U.S.C.
§ 402(d). To answer that question, we must determine whether
Florida law authorizes P.S.S. to inherit a child’s share of Mr. Steele’s
intestate personal property, as is required in order to recover CIB.
See
id. § 416(h)(2)(A). The district court, the magistrate judge, and
the administrative law judge all concluded no, reasoning that, un-
der Florida Statute § 742.17(4), a child posthumously conceived—
like P.S.S.—could inherit property only through the decedent’s
will, and not through intestacy, as required to be entitled to CIB.
Because the Florida Supreme Court, which is the final arbi-
ter of Florida law, has not published a decision addressing this
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20-11656 Opinion of the Court 3
question, principles of comity and federalism suggest that the Flor-
ida Supreme Court should decide this issue. See WM Mobile Bay
Env’t Ctr., Inc. v. City of Mobile Solid Waste Auth.,
972 F.3d 1240,
1242 (11th Cir. 2020). We therefore respectfully certify the issues
of Florida law discussed below to the Florida Supreme Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Phillip and Kathleen Steele married in August 1997. The
couple decided to have children late in life. In 2009, through in
vitro fertilization, Ms. Steele conceived her first child. The couple
decided to have more children, and Mr. Steele, before his death,
provided additional sperm samples to the fertility clinic that had
assisted the couple with their first child. Using one of those sam-
ples after Mr. Steele’s death, Ms. Steele again conceived through in
vitro fertilization. Her second child, P.S.S.—for whom Ms. Steele
seeks CIB in this case—was born in March 2013, seventeen months
after Mr. Steele’s death.
Before his death, Mr. Steele prepared a will through his at-
torney, Louie Adcock. The will specifically listed his living chil-
dren, but it also stated, “The terms ‘children’ and ‘lineal descend-
ants’ shall include those later born or adopted and whenever used
in this instrument shall be equivalent to blood relationship and re-
lationship by adoption.”
Shortly after P.S.S.’s birth, Ms. Steele applied for CIB under
the Social Security Act on behalf of P.S.S. In support of her appli-
cation, she attached P.S.S.’s birth certificate, which listed Mr. Steele
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4 Opinion of the Court 20-11656
as the father. She also submitted letters from Mr. Adcock, who had
helped prepare Mr. Steele’s will, and Dr. Julio Pabon, who had car-
ried out the in vitro procedures. In his letter, Mr. Adcock opined
that Mr. Steele’s preserving sperm before his death, which was then
used by Ms. Steele to conceive P.S.S. after Mr. Steele’s death, was
“an indication that this was a planned pregnancy,” given that Mr.
Steele was aware of his age and health and was “devoted” to Ms.
Steele. As such, Mr. Adcock stated that he believed Mr. Steele
would consider the “pregnancy as being planned.” But Mr. Adcock
admitted that he did “not recall having had a conversation with
[Mr. Steele] about the preservation of sperm.” Dr. Pabon, in his
letter, stated that Ms. Steele had conceived P.S.S. using Mr. Steele’s
preserved sperm and that Mr. Steele had “documented his desire
for his wife to use the sperm for a future conception even if he were
to be incapacitated or deceased.”
In February 2014, the Social Security Administration denied
the CIB claim. The Administration explained that P.S.S. did “not
meet the dependency requirement for benefits” and upheld the de-
nial after Ms. Steele sought reconsideration.
Ms. Steele then sought review of the agency’s decision by an
administrative law judge, who denied the claim. The administra-
tive law judge explained that, to qualify for CIB, the claimant must
be the deceased individual’s “child” within the meaning of the So-
cial Security Act, which in turn depended on whether “the claimant
could inherit a child’s share of the insured individual’s intestate per-
sonal property under the law of the State in which the insured
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20-11656 Opinion of the Court 5
individual was domiciled when he died”—here, Florida. Applying
Florida law, the administrative law judge concluded that P.S.S.
could not recover intestate property. The administrative law judge
determined that the relevant Florida statute was section 742.17(4), 1
which provides that a posthumously conceived child “shall not be
eligible for a claim against the decedent’s estate unless the child has
been provided for by the decedent’s will.” The administrative law
judge concluded that, under section 742.17(4), posthumously con-
ceived children could “only inherit through the person’s will,” not
through intestacy. The administrative law judge further found that
Mr. Steele had not provided for P.S.S. in his will because the will
did not “specifically provide for the claimant or otherwise indicate
his intent to provide for any child conceived after his death.” The
Appeals Council declined Ms. Steele’s request for review of the ad-
ministrative law judge’s decision.
Having exhausted her administrative remedies, Steele filed
suit in federal court against the Commissioner of the Social Secu-
rity Administration (the “Commissioner”) pursuant to
42 U.S.C.
§§ 405(g) and 1383(c)(3). The district court referred the matter to
1 In doing so, the administrative judge law reasoned that, while there was no
case law where a Florida court had specifically applied section 742.17 “to de-
termine a child’s status for purposes of intestate succession,” it was “safe to
assume that a Florida court would find [section] 742.17(4) applicable in deter-
mining the claimant’s intestacy rights,” given “Florida precedent recognizing
determinations of paternity under some parts of Chapter 742 for the purposes
of determining intestacy rights.”
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6 Opinion of the Court 20-11656
a magistrate judge, who issued a report and recommendation that
recommended affirming the administrative law judge’s decision
that upheld the denial of the CIB claim. The magistrate judge
agreed with the administrative law judge that P.S.S. “did not qual-
ify as an ‘afterborn heir’ under Florida intestacy law because he was
born seventeen months after the death of Mr. Steele.” The magis-
trate judge also found that the administrative law judge’s interpre-
tation of section 742.17(4) was correct in determining that “posthu-
mously conceived children cannot inherit property intestate under
Florida law, but rather can only inherit property through a person’s
will.” In doing so, the magistrate judge rejected Steele’s argument
that section 742.17(4) allowed P.S.S. to inherit under Florida intes-
tacy laws because there was a will—Mr. Steele’s—providing for
P.S.S. The magistrate judge reasoned that “intestacy, by its nature,
is inheriting a decedent[’]s estate absent the existence of a valid
will.”
Ms. Steele filed objections to the report and recommenda-
tion. The district court overruled her objections and adopted the
magistrate judge’s report and recommendation. This appeal en-
sued.
II. ANALYSIS
On appeal, Ms. Steele argues that the district court erred in
adopting the magistrate judge’s report and recommendation and
by not granting CIB to P.S.S. Specifically, Ms. Steele contends that
the phrase “unless the child has been provided for by the decedent’s
will” in Florida Statute § 742.17(4) effectively vests such a child
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20-11656 Opinion of the Court 7
with intestate rights in the event he or she is provided for by the
decedent’s will. Relying on this interpretation, Ms. Steele asserts
that P.S.S. was provided for in Mr. Steele’s will such that P.S.S. is
entitled to inherit intestate a share of the personal property of his
parent, Mr. Steele, under Florida law. And, as such, Ms. Steele con-
tends that P.S.S. is considered a “child” within the meaning of the
Social Security Act and is entitled to CIB. In response, the Com-
missioner contends that the interpretation of the administrative
law judge, magistrate judge, and district court is correct—i.e., that,
under section 742.17(4), a posthumously conceived child may in-
herit only through the decedent’s will, if provided for, and thus not
through intestacy.
We first turn to the relevant statutory provisions and case
law. Under the Social Security Act, an applicant qualifies for CIB if
he “meets the Act’s definition of ‘child,’ is unmarried, is below spec-
ified age limits (18 or 19) or is under a disability which began prior
to age 22, and was dependent on the insured at the time of the in-
sured’s death.” Astrue v. Capato ex rel. B.N.C.,
566 U.S. 541, 547
(2012);
42 U.S.C. § 402(d). Title
42 U.S.C. § 416(e) defines “child,”
in relevant part, as “(1) the child or legally adopted child of an indi-
vidual, (2) a stepchild [under certain circumstances], and (3) . . . the
grandchild or stepgrandchild of an individual or his spouse [who
meets certain conditions].” Astrue,
566 U.S. at 547. Additionally,
a subsequent definitional provision addresses the term “child.”
This statute—
42 U.S.C. § 416(h)(2)(A)—provides that “[i]n deter-
mining whether an applicant is the child or parent of [an] individual
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8 Opinion of the Court 20-11656
for purposes of this subchapter, the Commissioner of Social Secu-
rity shall apply [the intestacy law of the insured individual’s domi-
ciliary State].” Astrue,
566 U.S. at 548 (some alterations in original)
(quoting § 416(h)(2)(A)). As the Supreme Court has explained,
§ 416(h)(2)(A) “completes the definition of ‘child’ ‘for purposes of
th[e] subchapter’ that includes § 416(e)(1).” See id. at 558 (altera-
tion in original) (quoting § 416(h)(2)(A)). Thus, we must determine
whether under Florida law P.S.S.—a posthumously conceived
child—can inherit Mr. Steele’s personal property through intes-
tacy.
Whether posthumously conceived children can inherit
through intestacy under Florida law is a question of first impression
for this Court. And because the issue before us involves questions
of statutory interpretation, “we begin ‘where all such inquiries
must begin: with the language of the statute itself,’ giving ‘effect to
the plain terms of the statute.’” Paresky v. United States,
995 F.3d
1281, 1285 (11th Cir. 2021) (quoting United States v. Henco Hold-
ing Corp.,
985 F.3d 1290, 1297 (11th Cir. 2021)). In determining the
plain meaning of a statute, “we consider ‘the “particular statu-
tory language at issue”’ as well as ‘the language and design of the
statute as a whole.’”
Id. (quoting Wachovia Bank, N.A. v. United
States,
455 F.3d 1261, 1267–68 (11th Cir. 2006)).
Under Florida law, “[a]ny part of the estate of a decedent not
effectively disposed of by will passes to the decedent’s heirs,”
Fla.
Stat. § 732.101(1), which includes “the descendants of the dece-
dent,”
id. § 732.103(1). Under Florida Statute § 731.201(9), a
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20-11656 Opinion of the Court 9
“descendant” is “synonymous with the terms ‘lineal descendant’
and ‘issue’” and means “a person in any generational level down
the applicable individual’s descending line and includes children,
grandchildren, and more remote descendants.” Florida’s probate
code also contains a section titled, “Afterborn heirs.”
Fla. Stat.
§ 732.106. This section states that afterborn heirs are “[h]eirs of the
decedent conceived before his or her death, but born thereafter,”
and “inherit intestate property as if they had been born in the dece-
dent’s lifetime.”
Id. (emphasis added). As the parties agree, section
732.106 does not apply to P.S.S. because he was conceived after Mr.
Steele’s death.
In addressing this issue, the administrative law judge, mag-
istrate judge, and district court—as well as the parties in their
briefs—analyzed section 742.17(4), titled “Disposition of eggs,
sperm, or preembryos; rights of inheritance.” Section 742.17(4) is
not contained in Florida’s probate code; rather, it is in Florida’s do-
mestic relations laws. Section 742.17(4) provides that “[a] child
conceived from the eggs or sperm of a person or persons who died
before the transfer of their eggs, sperm, or preembryos to a
woman’s body shall not be eligible for a claim against the dece-
dent’s estate unless the child has been provided for by the dece-
dent’s will.”
Here, the parties dispute the meaning of the phrase “unless
the child has been provided for by the decedent’s will” in section
742.17(4). The administrative law judge interpreted section
742.17(4) to provide that a posthumously conceived child cannot
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10 Opinion of the Court 20-11656
inherit the decedent’s intestate personal property because that
posthumously conceived child could only inherit through the de-
cedent’s will. Both the magistrate judge and district court agreed
with the administrative law judge, and the Commissioner argues
in favor of this interpretation on appeal. In doing so, the Commis-
sioner asserts that intestacy under Florida law “occurs when a ben-
eficiary collects all or a portion of a decedent’s estate in the absence
of a will” and that section 742.17(4) does not implicitly establish
intestacy rights for a posthumously conceived child that has no
claims to a decedent’s estate except those created through a will.
By contrast, Ms. Steele argues that the phrase “unless the
child has been provided for by the decedent’s will” effectively vests
such a child with intestate rights if he or she is provided for by the
decedent’s will. In essence, Ms. Steele argues that section 742.17(4)
allows a posthumously conceived child to inherit a decedent’s per-
sonal property intestate as long as the child is provided for by the
decedent’s will.
We find that section 742.17(4) is reasonably open to both in-
terpretations. On one hand, section 742.17(4) may be reasonably
read as limiting the rights of posthumously conceived children to
property devised in the decedent’s will, i.e., providing no right to
inherit the decedent’s property intestate. Indeed, the provision of
Florida’s probate code concerning afterborn heirs only addresses
children conceived before the decedent’s death. See
Fla. Stat.
§ 732.106. Moreover, as previously mentioned, we also note the
placement of section 742.17(4) within the Florida code—it is in the
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20-11656 Opinion of the Court 11
title of the Florida code concerning domestic relations, not the pro-
bate code. And we note that no Florida court has applied section
742.17(4) in this manner, although the administrative law judge be-
lieved that Florida courts would apply section 742.17(4) in deter-
mining a claimant’s intestacy rights given Florida state court prec-
edent.
On the other hand, the phrase “unless the child has been pro-
vided for by the decedent’s will” in section 742.17(4) can be reason-
ably read as a condition for a posthumously conceived child to in-
herit a share of the decedent’s property intestate. We note that the
term “unless” is defined as “except on the condition that” or “under
any other circumstance than.” Unless, Merriam-Webster,
https://www.merriam-webster.com/dictionary/unless; see Ruiz
v. Wing,
991 F.3d 1130, 1138 (11th Cir. 2021) (explaining that, in
analyzing the plain meaning of language, this Court looks “to the
common usage of words for their meaning”). Thus, a reasonable
reading of section 742.17(4) is that a posthumously conceived child
cannot bring an intestate claim against the decedent’s estate except
if the child has been provided for by the decedent’s will. In other
words, a posthumously conceived child who is provided for by the
decedent’s will occupies the same status as a child conceived before
the decedent’s death and thus can inherit through intestacy that
portion of the decedent’s estate not disposed of by the will.
Given these two reasonable interpretations of the Florida
statute at issue, and the lack of Florida case law on the issue, we
believe it is the better option to certify this dispositive issue to the
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12 Opinion of the Court 20-11656
Florida Supreme Court. 2 See WM Mobile Bay, 972 F.3d at 1251; In
re Mooney,
812 F.3d 1276, 1283 (11th Cir. 2016). As a matter of
federalism and comity, it is often appropriate to certify dispositive
issues of Florida law to Florida’s highest court for decision. See
Blue Cross & Blue Shield of Ala., Inc. v. Nielsen,
116 F.3d 1406,
1413 (11th Cir. 1997). Indeed, “[c]ertification of state law issues to
state supreme courts is a valuable tool for promoting the interests
of cooperative federalism.”
Id.
2 In our certification of this question to the Florida Supreme Court, we also
observe that other provisions of the Florida code may be relevant to the issue.
As noted above, under Florida Statute § 732.101(1), “[a]ny part of the estate of
a decedent not effectively disposed of by will passes to the decedent’s heirs,”
which includes “the descendants of the decedent” under Florida Statute
§ 732.103(1). Therefore, sections 732.101(1) and 732.101(3) appear to set forth
another condition that P.S.S. must satisfy to inherit a decedent’s property in-
testate. And while not explicitly briefed by the parties, it is unclear to us
whether any Florida provision recognizes a posthumously conceived child as
a “descendant[] of the decedent.”
For example, Florida Statute § 742.11 provides, in relevant part, that “any child
born within wedlock who has been conceived by the means of artificial or in
vitro insemination is irrebuttably presumed to be the child of the husband and
wife.” (Emphasis added). But, under Florida law, “death, by operation of law,
. . . terminate[s] the marriage.” See MacLeod v. Hoff,
654 So. 2d 1250, 1251
(Fla. Dist. Ct. App. 1995) (applying this principle in a divorce proceeding). An-
other provision, Florida Statute § 732.108(2), applies to “persons born out of
wedlock,” but it is unclear to us if any of the requirements within this statute
apply to posthumously conceived children, especially because Florida Statute
§ 732.106 specifically defines “afterborn heirs” (and excludes posthumously
conceived children from that definition).
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20-11656 Opinion of the Court 13
We therefore certify to the Florida Supreme Court the fol-
lowing questions under Florida Rule of Appellate Procedure 9.150: 3
(1) Under Florida law, is P.S.S. “provided for” in the dece-
dent’s will within the meaning of
Fla. Stat. § 742.17(4)?
(2) If the answer is yes, does Florida law authorize a
posthumously conceived child who is provided
for in the decedent’s will to inherit intestate the
decedent’s property?
Our phrasing of these questions “is intended only as a
guide.” United States v. Clarke,
780 F.3d 1131, 1133 (11th Cir.
2015). It is not our intention to restrict the Florida Supreme
Court’s consideration of the issues or its scope of inquiry. See WM
Mobile Bay, 972 F.3d at 1251. The Florida Supreme Court “may,
as it perceives them, restate the issues and modify the manner in
which the answers are given.” Id. And “[i]f we have overlooked
or mischaracterized any state law issues or inartfully stated any of
the questions we have posed, we hope the [Florida] Supreme Court
will feel free to make the necessary corrections.” Id. (quoting Spain
3Under article V, section 3(b)(6) of the Florida constitution, the Florida Su-
preme Court “[m]ay review a question of law certified by the Supreme Court
of the United States or a United States Court of Appeals which is determinative
of the cause and for which there is no controlling precedent of the supreme
court of Florida.” Florida Rule of Appellate Procedure 9.150 establishes the
procedures governing those discretionary proceedings to review such certified
questions.
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14 Opinion of the Court 20-11656
v. Brown & Williamson Tobacco Corp.,
230 F.3d 1300, 1312 (11th
Cir. 2000)).
III. CONCLUSION
For these reasons, we defer our decision in this case until the
Florida Supreme Court has had the opportunity to consider and
determine whether to exercise its discretion in answering our cer-
tified question. The entire record of this case, including the parties’
briefs, is transmitted to the Florida Supreme Court.
QUESTION CERTIFIED.
