MSC 144385 IN RE CERTIFIED QUESTION (MATTISON V SOC SEC) Opinion on Application - Other 12/21/2012

In re CERTIFIED QUESTION FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
(MATTISON v SOCIAL SECURITY COMMISSIONER)
Docket No. 144385. Argued November 15, 2012. Decided December 21, 2012.
Pamela Mattison, on behalf of her twin children, brought an action in the United States
District Court for the Western District of Michigan against the Social Security Commissioner,
seeking social security survivors’ benefits for the children after the Social Security
Administration denied her application for benefits and she was unable to obtain relief through
administrative appeals. The twins were conceived by in vitro fertilization after their father,
Jeffery Mattison, had died. The parties stipulated that the determinative issue was whether
plaintiff’s twins could inherit from Jeffery under Michigan intestacy law as his children. The
district court entered an order approving a magistrate’s recommendation to ask the Michigan
Supreme Court to resolve the question. In accordance with MCR 7.305(B), the district court
certified the following question to the Supreme Court:
Whether M.M. and M.M. [plaintiff’s twins], conceived after the death of
Jeffery Mattison via artificial insemination using his sperm, can inherit from
Jeffery Mattison as his children under Michigan intestacy law.
The Supreme Court ordered and heard oral argument on whether to answer the certified question.
493 Mich __ (Docket No. 144385, entered September 21, 2012).
In an opinion by Justice M ARILYN KELLY, joined by Justices M ARKMAN , HATHAWAY,
M ARY BETH K ELLY, and ZAHRA, the Supreme Court held:
Children who are born after the death of a parent and who were not in gestation at the
time of the parent’s death may not inherit from that parent under Michigan intestacy law.
1. The Social Security Act authorizes disbursement of survivors’ benefits for children
who were dependent on a deceased worker before his or her death. To be eligible, an applicant
must demonstrate that he or she (1) is the child of the deceased wage earner and (2) was
dependent on that person at the time of that person’s death. Under 42 USC 416(h)(2)(A), in
determining whether an applicant is the child of a deceased individual, the Social Security
Commissioner must apply the law that would be applied in determining the devolution of
intestate personal property by the courts of the state in which the insured individual was
Michigan Supreme Court
Lansing, Michigan
Syllabus Chief Justice:
Robert P. Young, Jr.
Justices:
Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra
This syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions:
John O. Juroszek

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domiciled at the time of his or her death. In this case, Jeffery was domiciled in Michigan when
he died, so Michigan’s intestacy law is controlling.
2. Under the relevant Michigan statutory provisions, there are two groups of people
relevant to this case who could have acquired intestate inheritance rights: (1) descendants alive at
the moment of the decedent’s death who lived more than 120 hours immediately following the
decedent’s death and (2) descendants in gestation at the time of the decedent’s death who lived
120 hours after birth. Because plaintiff’s eggs were not fertilized and the embryos not
transferred until after Jeffery’s death, plaintiff’s twins could not inherit from Jeffery by intestate
succession under Michigan law. Plaintiff’s twins were not in gestation at Jeffery’s death, so no
inheritance rights vested in them at that time pursuant to MCL 700.2108, and because the twins
were not living at the time of his death, they had no inheritance rights as his heirs under MCL
700.2104.
3. MCL 700.2114(1)(a) creates a presumption that a child is the natural issue of both
spouses if born or conceived during the marriage. Included within that presumption are children
conceived by a married woman with the consent of her husband following the use of assisted
reproductive technology. The statute, however, does not allow the twins to inherit from Jeffery
because the twins were not conceived or born during plaintiff and Jeffery’s marriage given that
the marriage legally terminated upon Jeffery’s death. Because nothing in the relevant statutory
provisions contemplates intestate succession rights for plaintiff’s twins, they did not survive
Jeffery as his heirs in the eyes of the law.
Certified question answered in the negative; case returned to the district court for further
proceedings.
Justice M ARILYN K ELLY, joined by Justice C AVANAGH , concurring, stated that although
the Supreme Court’s decision was accurate and required by the law, it was lamentable. The facts
established that Jeffery had intended that any children conceived by in vitro fertilization using
his sperm be entitled to the same rights as naturally conceived children, without regard to when
they were conceived. Given the increasing prevalence of assisted reproductive technology, the
situation was likely to reoccur. The Legislature is capable of providing for after-conceived
children to inherit from a parent by intestate succession and should specifically address the issue.
Chief Justice YOUNG , dissenting, would have declined to answer the certified question
because the Michigan Supreme Court lacks the constitutional authority to issue advisory
opinions other than as described in 1963 Const, art 3, §8. While this position did not garner
majority support, certified questions should be accepted and answered sparingly and only when
the Michigan legal issue is both unclear and pivotal to the federal case that prompted the request
for the certified question. There is nothing remotely unclear or debatable regarding the ability of
after-born children to take as heirs under Michigan’s intestacy laws —the children must be “in
gestation” under MCL 700.2108 at the time of the decedent’s death. Therefore, the district court
should have been easily able to determine for itself the answer to its certified question without
the assistance of the Supreme Court.
©2012 State of Michigan

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FILED DECEMBER 21, 2012
S T A T E O F M I C H I G A N
SUPREME COURT
_____________________________________
In re CERTIFIED QUESTION FROM THE
UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF MICHIGAN
_____________________________________
PAMELA MATTISON, on behalf of M.M.
and M.M.,
Plaintiff,
No. 144385
v
SOCIAL SECURITY COMMISSIONER,
Defendant.
BEFORE THE ENTIRE BENCH
M ARILYN K ELLY, J.
Plaintiff, Pamela Mattison, gave birth to twins who were conceived by artificial
insemination after their father, Jeffery Mattison, had died. She sought social security
survivors’ benefits for the children based on Jeffery’s earnings. The Social Security
Administration denied her application, and an administrative law judge affirmed that
Michigan Supreme Court
Lansing, Michigan
Opinion Chief Justice:
Robert P. Young, Jr.
Justices:
Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra

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2
decision. Plaintiff then filed an action in the United States District Court for the Western
District of Michigan challenging the decision. That court has asked us to rule on the
determinative issue, which is whether the children can inherit from Jeffery under
Michigan intestacy law. Only if they can inherit would they be entitled to social security
survivors’ benefits.
The district court certified the question to this Court in accordance with MCR
7.305(B) in these words:
Whether M.M. and M.M. [plaintiff’s twins], conceived after the
death of Jeffery Mattison via artificial insemination using his sperm, can
inherit from Jeffery Mattison as his children under Michigan intestacy law.
Having heard oral argument, we grant the district court’s request to answer the
question. We hold that, under Michigan intestacy law, plaintiff’s children cannot inherit
from Jeffery. We return the matter to the district court for further proceedings as that
court deems appropriate.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff and Jeffery Mattison were married in 1995. In 1997, plaintiff became
pregnant with the aid of artificial insemination and gave birth to a daughter. Plaintiff and
Jeffery wanted more children but were unable to conceive naturally because of Jeffery’s
medical conditions, which included lupus, diabetes, high blood pressure, and kidney
failure.
Because chemotherapy treatment for lupus would damage Jeffery’s sperm, he
interrupted his chemotherapy treatment and deposited his semen into a sperm bank,
where it was frozen and stored. Soon after the birth of his daughter, Jeffery executed a

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3
general durable power of attorney that appointed plaintiff as his attorney-in-fact.
Included among the powers given to her was the authority to “take any and all action
necessary pertaining to any sperm or embryos [Jeffery] may have stored including their
implantation or termination.” In October 2000, plaintiff and Jeffery began an in vitro
fertilization program in which plaintiff received daily hormone injections. These were
necessary to allow her eggs to be harvested.
Jeffery died unexpectedly on January 18, 2001, in Michigan. Plaintiff continued
the in vitro fertilization program after his death and underwent egg retrieval on
January 28, 2001. Those eggs were inseminated with Jeffery’s sperm and transplanted
into plaintiff on January 30, 2001. As a result of the transplantation process, plaintiff
gave birth to twins on October 8, 2001.
On October 23, 2001, plaintiff filed an application for social security survivors’
benefits based on Jeffery’s earnings records on behalf of her twins. The Social Security
Administration denied the application and later denied reconsideration. Plaintiff then
requested a hearing on the matter. The presiding administrative law judge decided that
plaintiff’s twins were not entitled to social security survivors’ benefits because they could
not inherit from Jeffery under Michigan intestacy law. The Social Security
Administration Appeals Council denied plaintiff’s request for review of the
administrative law judge’s decision.
In August 2005, plaintiff filed suit in the United States District Court for the
Western District of Michigan, challenging the denial of benefits. The parties stipulated
that the determinative issue is whether plaintiff’s twins can inherit from Jeffery under
Michigan intestacy law as his children. The district court entered an order approving a

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4
magistrate’s recommendation to ask this Court to resolve the question. For reasons
unknown, the question was not filed in this Court until nearly five years later.
We granted oral argument on whether to answer the question certified to us.1
II. ANALYSIS
A. LEGAL BACKGROUND
The Social Security Act authorizes disbursement of survivors’ benefits for
children who were dependent on a deceased worker before his or her death. 2 As the
United States Supreme Court has noted, the purpose of providing survivors’ benefits is to
protect children from a loss of support resulting from the death of a parent.3 However,
not all children of a deceased parent are eligible for these benefits. To be eligible, an
applicant must demonstrate that he or she (1) is the “child” of the deceased wage earner4
and (2) was dependent on that person at the time of that person’s death.5
Whether an applicant is the child of a deceased wage earner for purposes of the
Social Security Act is governed by 42 USC 416(h)(2)(A), which provides:
In determining whether an applicant is the child or parent of a fully
or currently insured individual for purposes of this subchapter [42 USC 401
through 434], the Commissioner of Social Security shall apply such law as
would be applied in determining the devolution of intestate personal
1 In re Certified Question from the United States Dist Court for the Western Dist of Mich,
493 Mich ___ (Docket No. 144385, entered September 21, 2012).
2 See generally 42 USC 402(d).
3 Mathews v Lucas, 427 US 495, 507; 96 S Ct 2755; 49 L Ed 2d 651 (1976).
4 42 USC 402(d)(1) and (2).
5 42 USC 402(d)(1)(C)(ii).

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property by the courts of the State in which such insured individual is
domiciled at the time such applicant files application or, if such insured
individual is dead, by the courts of the State in which he was domiciled at
the time of his death . . . . [Emphasis added.]
Thus, because Jeffery was domiciled in Michigan when he died, the issue to be resolved
is whether our state intestacy law permits the twins to inherit from Jeffery.
The United States Supreme Court recently spoke on this subject in the case of
Astrue v Capato.6 The respondent’s husband had died 18 months before she gave birth to
twins conceived through in vitro fertilization using the decedent’s frozen sperm. The
respondent applied for social security survivors’ benefits on their behalf. When the
Social Security Administration denied her application, she brought an action in the courts
to review the decision.
The trial court found that the respondent’s deceased husband was domiciled in
Florida at his death. Under Florida law, children conceived after a parent’s death cannot
inherit from that parent through intestate succession and thus cannot receive social
security survivors’ benefits as children of that parent. The United States Court of
Appeals for the Third Circuit reversed that decision. It applied the Social Security Act
and opined that the undisputed biological children of an insured and his widow qualify
for survivors’ benefits without regard to state intestacy law.7 But the United States
Supreme Court reversed the judgment of the Third Circuit. It held that the question
6 Astrue v Capato, 566 US ___; 132 S Ct 2021; 182 L Ed 2d 887 (2012).
7 Capato v Social Security Comm’r, 631 F3d 626, 630 (CA 3, 2011).

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6
whether posthumously conceived children qualify for social security survivors’ benefits
must be determined under state intestacy law.8
Michigan law has long established that the rights to intestate inheritance vest at the
time of a decedent’s death.9 They are governed by statutory provisions found in article
II, part 1 of the Estates and Protected Individuals Code (EPIC).10
Several EPIC provisions bear on whether plaintiff’s twins can inherit from Jeffery.
The first, MCL 700.2101(1), provides that “[a]ny part of a decedent’s estate not
effectively disposed of by will passes by intestate succession to the decedent’s heirs as
prescribed in this act . . . .” Next, MCL 700.2103 provides that “[a]ny part of the
intestate estate that does not pass to the decedent’s surviving spouse . . . passes . . . to
[certain] . . . individuals who survive the decedent[.]” MCL 700.1107(j) defines
“survive” as meaning that “an individual neither predeceases an event, including the
death of another individual, nor is considered to predecease an event under [MCL
700.2104 or MCL 700.2702].” 11
8 Astrue, 566 US at ___; 132 S Ct at 2031-2033.
9 In re Adolphson Estate, 403 Mich 590, 593; 271 NW2d 511 (1978) (“Determinations of
heirs are to be governed by statutes in effect at the time of death . . . .”); In re Dempster’s
Estate, 247 Mich 459, 462; 226 NW 243 (1929), quoting In re Pivonka’s Estate, 202
Iowa 855; 211 NW 246 (1926) (“‘The estate of the insured’ came into being as the estate
of a deceased person . . . instantly upon the death of such deceased person. The heirs of a
decedent are . . . to be determined by ascertaining upon whom the law casts the estate
immediately upon the death of the ancestor.”).
10 MCL 700.2101 et seq.
11 Random House Webster’s College Dictionary (2001) similarly defines “survive” as,
among other things, “1. to remain alive, as after the death of another or the occurrence of
some event; continue to live. . . . 4. to continue to live or exist after the death, cessation,

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7
Likewise, MCL 700.2106(3)(b) defines “surviving descendant” as “a descendant
who neither predeceased the decedent nor is considered to have predeceased the decedent
under [MCL 700.2104].” MCL 700.2104 states, “An individual who fails to survive the
decedent by 120 hours is considered to have predeceased the decedent for purposes of . . .
intestate succession, and the decedent’s heirs are determined accordingly.” Hence, an
individual must be alive when the decedent dies and live more than 120 hours afterward
to inherit from the decedent’s estate under the laws of intestate succession.
Also relevant is MCL 700.2108 which states, “An individual in gestation at a
particular time is treated as living at that time if the individual lives 120 hours or more
after birth.” Finally, MCL 700.2114(1)(a) provides, in pertinent part:
If a child is born or conceived during a marriage, both spouses are
presumed to be the natural parents of the child for purposes of intestate
succession. A child conceived by a married woman with the consent of her
husband following utilization of assisted reproductive technology is
considered as their child for purposes of intestate succession.
On the basis of these provisions, there are two groups of people relevant to this
case that may acquire intestate inheritance rights: (1) descendants alive at the moment of
the decedent’s death who live more than 120 hours immediately following the decedent’s
death and (2) descendants in gestation at the time of the decedent’s death who live 120
hours after birth.
or occurrence of.” Thus, to survive the death of another, one must be living at the time of
that person’s death.

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B. APPLICATION
Considering these statutes, plaintiff’s twins cannot inherit from Jeffery by intestate
succession. The record shows that plaintiff’s eggs were not inseminated with Jeffery’s
sperm and implanted until January 30, 2001, which was 12 days after Jeffery died.
Because plaintiff’s twins were not in gestation at Jeffery’s death, no inheritance rights
vested in them at that time pursuant to MCL 700.2108. Moreover, because the twins
were not living at the time of his death, they had no inheritance rights as heirs pursuant to
MCL 700.2104.
Nor does MCL 700.2114(1)(a) allow the twins to inherit from Jeffery. That
statute indicates that, for purposes of intestate succession, a child is presumed to be the
natural issue of both spouses if born or conceived during the marriage. It includes in that
presumption children conceived by a married woman with the consent of her husband
following the use of assisted reproductive technology. Applying that provision here, the
twins were neither conceived nor born during plaintiff and Jeffery’s marriage because
“[m]arriage is a status that legally terminates . . . upon the death of a spouse . . . .” 12
Accordingly, the twins are not Jeffery’s children for purposes of the state laws of
intestate succession and, therefore, they cannot inherit from him. 13
In sum, nothing in EPIC or in other relevant statutory provisions contemplates
intestate succession rights for plaintiff’s twins. Because they were conceived and born
12 Byington v Byington, 224 Mich App 103, 109; 568 NW2d 141 (1997).
13 Although it is not relevant to our determination in this case, we note that Jeffery died
without a will.

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9
after Jeffery’s death, they did not survive him as his heirs in the eyes of the law.
Therefore, we answer the certified question in the negative.
III. CONCLUSION
We hold that under Michigan intestacy law, plaintiff’s twins, who were conceived
after the death of Jeffery Mattison through artificial insemination using his sperm, cannot
inherit from Jeffery as his children. We answer the certified question in the negative and
return the case to the district court for such further proceedings as that court deems
appropriate.
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra

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S T A T E O F M I C H I G A N
SUPREME COURT
_____________________________________
In re CERTIFIED QUESTION FROM THE
UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF MICHIGAN
_____________________________________
PAMELA MATTISON, on behalf of M.M.
and M.M.,
Plaintiff,
No. 144385
v
SOCIAL SECURITY COMMISSIONER,
Defendant.
M ARILYN K ELLY, J. (concurring).
I write separately to express my view that although the Court’s decision in this
matter is accurate and required by the law, it is lamentable.
It is undisputed that the twins are Jeffery Mattison’s biological children in that his
sperm were used to inseminate plaintiff’s eggs. Yet Michigan intestacy law prevents
these children from inheriting from their father and, as a consequence, from receiving
social security survivors’ benefits. This is because our Legislature has not made
provision for children conceived by assisted reproductive technology after a parent’s
death to inherit from the parent by intestate succession. This situation will likely reoccur.

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2
It is not known whether the Legislature has ever considered the problem presented
here. If it had, it would have been confronted with the fact that gestation by assisted
reproductive technology can occur long after the death of one parent. If the estate of the
deceased parent had to remain open while the widow or widower contemplated the use of
assisted reproductive technology, timely probating of the estate could be frustrated.1
Standing in contrast to that consideration is the fact that one goal of the Estates
and Protected Individuals Code (EPIC)2 is “[t]o discover and make effective a decedent’s
intent in distribution of the decedent’s property.” 3 Two facts in this case relate to this
goal: (1) the twins are undisputedly Jeffery’s children and (2) Jeffery executed a power of
attorney appointing plaintiff as his attorney-in-fact with the power to “take any and all
action necessary pertaining to any sperm or embryos [he] may have stored including their
implantation or termination.” Jeffery intended that any children conceived by in vitro
fertilization using his sperm be entitled to the same rights as naturally conceived children,
without regard to when they were conceived.
It is not the role of this Court to fashion a legal remedy allowing after-conceived
children to inherit from a deceased parent by intestate succession. But the Legislature is
capable of providing for it. For instance, the Legislature could provide for a limited
period after a person’s death during which his or her spouse could arrange for a child to
be conceived by assisted reproductive technology. It could provide that a child conceived
1 See MCL 700.1201(c).
2 MCL 700.1101 et seq.
3 MCL 700.1201(b).

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3
within that period would be entitled to inherit from the deceased parent by intestate
succession. Alternatively, the Legislature could mandate that the conception occur
within a reasonable time after a spouse’s death in order for the child to be eligible to
inherit.4
Some state legislatures have already grappled with the issue, while others have
not, as summarized by this chart that also identifies the source of the law in each state: 5
4 See, e.g., Carpenter, A chip off the old iceblock: How cryopreservation has changed
estate law, why attempts to address the issue have fallen short, and how to fix it, 21
Cornell J L & Pub Policy 347, 380 (2011) (explaining that some states have enacted
legislation that requires “(1) the decedent, in writing, [to] authorize[] the surviving spouse
to use the genetic material, and (2) the child [to be] born within two years after the
decedent’s death”).
5 Id. at 403-404. See also Lorio, Conceiving the inconceivable: Legal recognition of the
posthumously conceived child, 34 American College of Trust & Estate Counsel L J 154,
156-162 (2008). After Professor Benjamin Carpenter’s article was published in 2011, the
Nebraska Supreme Court held that Nebraska’s statutes exclude posthumously conceived
children from inheriting by intestate succession. See Amen v Astrue, 284 Neb 691; 822
NW2d 419 (2012).

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4
TABLE 1: A PPROACHES TO P OSTHUMOUSLY CONCEIVED CHILDREN
FOR P ROBATE P URPOSES BY J URISDICTION
Source[6] Includes Excludes Unclear Jurisdiction
1946 MPC 4 Indiana, Maryland, Ohio,
Pennsylvania
1969 UPC 3 Maine, Nebraska, Tennessee
1988 USCACA 1 Virginia
1990 UPC 8 Alaska, Arizona, Hawaii,
Michigan, Montana,
Vermont, West Virginia,
Wisconsin
2000 UPA 7 Alabama, Delaware, New
Mexico, Texas, Utah,
Washington, Wyoming
2008 UPC 2 Colorado, North Dakota
Other statute 4 6 12 Includes: California, Florida,
Iowa, Louisiana Excludes:
Georgia, Idaho, Minnesota,
South Carolina, South
Dakota, New York
Unclear: Connecticut,
District of Columbia, Illinois,
Kansas, Missouri, Oklahoma,
Kentucky, North Carolina,
Oregon, Rhode Island,
Mississippi, Nevada
Caselaw 2 2 Includes: Massachusetts
(Woodward);[7] New Jersey
(Kolacy) [8]
Excludes: Arkansas
(Finley);[9] New Hampshire
(Khabbaz) [10]
Total 8 9 34
6 “MPC” stands for Model Probate Code. “UPC” stands for Uniform Probate Code.
“USCACA” stands for Uniform Status of Children of Assisted Conception Act. “UPA”
stands for Uniform Parentage Act.
7 Woodward v Social Security v Comm’r, 435 Mass 536; 760 NE2d 257 (2002).
8 In re Kolacy Estate, 332 NJ Super 593; 753 A2d 1257 (2000).
9 Finley v Astrue, 372 Ark 103; 270 SW3d 849 (2008).
10 Khabbaz v Social Security Admin Comm’r, 155 NH 798; 930 A2d 1180 (2007).

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5
It is incumbent on the Legislature to keep our laws abreast of our times. This is
especially true given the “growing and complex area of nontraditional family life” and
the increasing prevalence of assisted reproductive technology.11
For these reasons, I urge our Legislature to specifically address the issue presented
in this case in the near future.
Marilyn Kelly
Michael F. Cavanagh
11 Messmer, Assisted reproductive technology: A lawyer’s guide to emerging law and
science, 3 J Health & Biomed L 203, 204 (2007).

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S T A T E O F M I C H I G A N
SUPREME COURT
_____________________________________
In re CERTIFIED QUESTION FROM THE
UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF MICHIGAN
_____________________________________
PAMELA MATTISON, on behalf of M.M.
and M.M.,
Plaintiff,
v No. 144385
SOCIAL SECURITY COMMISSIONER,
Defendant.
Y OUNG, C.J. (dissenting).
While I agree with the majority’s analysis of our state’s intestacy laws, I
respectfully dissent and would decline to answer the certified question. I do so for two
reasons.
First, I continue to believe that this Court lacks the constitutional authority to issue
advisory opinions1 other than as described in article 3, § 8 of Michigan’s 1963
1 See In re Certified Question from the United States Dist Court for the Eastern Dist of
Mich (Wayne Co v Philip Morris, Inc), 622 NW2d 518 (Mich, 2001) (YOUNG , J.,
concurring); In re Certified Questions from the United States Court of Appeals for the
Sixth Circuit, 472 Mich 1225 (2005) (Y OUNG, J., concurring); In re Certified Question
(Waeschle v Oakland Co Med Examiner), 485 Mich 1116, 1117 (2010) (Y OUNG, J.,
dissenting).

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2
Constitution.2 My position regarding the Court’s constitutional authority did not prevail,
and I accept that the Court has determined otherwise. 3 However, my constitutional
reservation counsels that this Court should accept and answer certified questions from the
federal courts sparingly and only when the Michigan legal issue is a debatable one and
pivotal to the federal case that prompted the request for the certified question. It is this
prudential concern that I now address.
I concede that the question whether the children at issue are “heirs” of their
deceased father under Michigan intestacy law is determinative to the federal case.4 Under
federal law, the children are entitled to social security survivors’ benefits if the children
can take as heirs from their father under Michigan intestacy law, MCL 700.2101 et seq.5
The children’s entitlement to take as heirs is provided by MCL 700.2103, under which it
must be shown that the children are both their father’s descendants6 and that they
2 Const 1963, art 3, § 8 grants this Court limited authority to issue advisory opinions:
“Either house of the legislature or the governor may request the opinion of the Supreme
Court on important questions of law upon solemn occasions as to the constitutionality of
legislation after it has been enacted into law but before its effective date.”
3 In contrast to the narrow scope of authority described in Const 1963, art 3, § 8, MCR
7.305(B) authorizes this Court to answer certified questions from “a federal court,
[foreign] state appellate court, or tribal court.” I believe that MCR 7.305(B) exceeds this
Court’s judicial power and is unconstitutional.
4 Although the question is determinative, neither the federal court nor the plaintiff felt
much urgency because the certified question was not filed with this Court for nearly five
years after the federal court ordered that the question be certified.
5 See 42 USC 416(h)(2)(A).
6 Whether the children are their father’s descendants has not been a point of dispute in
this litigation. MCL 700.2114 describes various ways in which “[t]he parent and child
relationship” may be established in order to show that a claimant is a descendant of a

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3
survived their father. 7 However, as the majority opinion conclusively establishes, the
question whether the children may be considered to have been alive at the time of their
father’s death is not debatable under our intestacy laws—a point plaintiff’s counsel
conceded at oral argument. The only way that the children may be deemed to have
survived their father is if they were “in gestation” at the time of their father’s death.8
Thus, the only way plaintiff could prevail is if this Court failed to give the word
“gestation” its plain and ordinary meaning. Indeed, plaintiff’s counsel urged that these
children could be deemed “in gestation” by construing gestation as a “process” that
included hormone therapy administered to the mother before the father’s death as well as
in vitro fertilization and embryo transfer that occurred after the father’s death. This, of
course, is no more than a call for construction by eisegesis and would require an entirely
apocryphal interpretation of a common term: gestation.
I believe that no serious debate regarding the plain language of the relevant laws
exists and that no reasonable construction of our laws would permit the children to take
decedent. However, merely showing that a claimant is a descendant under MCL
700.2114 is insufficient to establish an entitlement to take as an heir under Michigan’s
laws of intestate succession. Rather, the plain language of MCL 700.2103 also requires
that the descendant “survive the decedent[.]”
7 MCL 700.1107(j) defines “survive” to mean that “an individual neither predeceases an
event, including the death of another individual, nor is considered to predecease an event
under [MCL 700.2104 or MCL 700.2702].” Thus the children are deemed to have
survived their father if they did not die before, i.e., did not predecease, the death of their
father.
8 MCL 700.2108, concerning afterborn heirs, provides in full as follows: “An individual
in gestation at a particular time is treated as living at that time if the individual lives 120
hours or more after birth.”

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as heirs of their deceased father under our intestacy provisions. 9 Indeed, both the Social
Security Administration and the administrative law judge who reviewed the case applied
9 Contrary to the assertions of the concurrence, it cannot be said that “[i]t is not known
whether the Legislature has ever considered the problem presented here.” Ante at 2. For
more than 130 years, Michigan’s law regarding the intestate inheritance rights of
afterborn children remained substantively unchanged, simply providing that
“[p]osthumous children are considered as living at the death of their parents.” 1846 RS,
ch 67, §13; 1857 CL 2824; 1871 CL 4321; How Stat 5784; 1897 CL 9076; 1915 CL
11807; 1929 CL 13452. See also 1939 PA 288, ch II, § 85; 1948 CL 702.85; 1970 CL
702.85. If that historical statutory language had remained unaltered, the Mattison children
would be entitled to inherit as heirs because they are the “posthumous children” of their
natural father, Jeffery Mattison.
However, beginning with 1978 PA 642, the Legislature amended the law,
providing in former MCL 700.109(2) that “[h]eirs of the decedent conceived before his
death but born thereafter shall inherit as if they had been born in the lifetime of the
decedent.” (Emphasis added.) With the enactment of the Estates and Protected
Individuals Code (EPIC), 1998 PA 386, MCL 700.1101 et seq., the law was amended to
reflect the current language, requiring that a child be “in gestation” at the time of a
decedent’s death in order to be treated as living at that time. Thus, the Legislature has
twice amended the law to unambiguously reflect that an afterborn child may take as an
heir under our intestate succession provisions provided that the child is in utero at the
time of a decedent’s death.
Moreover, the enactment of MCL 700.2114(1)(a) affirmatively repudiates any
claim that the Legislature failed to consider the implications of advanced reproductive
technology on Michigan’s law of intestate succession. MCL 700.2114(1)(a) states that
the necessary “parent and child relationship” may be established when a “child [is]
conceived by a married woman with the consent of her husband following utilization of
assisted reproductive technology . . . .”
While the concurrence believes that the Legislature’s failure to allow after-
conceived children to inherit under our law of intestate succession is lamentable, such a
policy choice is perfectly consistent with the Legislature’s stated “purposes and policies”
underlying the enactment of EPIC, which include “promot[ing] a speedy and efficient
system for liquidating a decedent’s estate and making distribution to the decedent’s
successors.” MCL 700.1201(c). Because frozen human reproductive material remains
viable for many years, providing an open-ended period of entitlement for after-conceived
children to take as heirs would prevent the closure of an intestate decedent’s estate for an
indefinite period of time.

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5
the common meaning of gestation and denied survivor’s benefits to the children because,
as the Social Security Administration phrased it, the children “were not in gestation at the
time of Mr. Mattison[’s] death.” That being the case, the federal court should have been
easily able to determine for itself the very answer to its certified question that the
majority has provided. As such, this would appear to be the textbook example of the kind
of certified question that this Court ought to have exercised its discretion and declined to
answer.
For these reasons, I respectfully dissent and would decline to answer the certified
question.
Robert P. Young, Jr.

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