Law of Wills, 2016A

ights of the live person be given preference over the reproductive rights of the deceased person? In
order words, is the right to not procreate a fundamental right?
Probate law is really localized. Thus, the outcome of the case usually turns upon whether or
not the court is willing to give the intestacy statute a broad reading. As the next cases illustrate,
sometimes a court is willing to strictly construe the words of the statute even when the construction
goes against the best interests of the child and the wishes of the deceased man. On other occasions,
a court will permit the child to inherit in order to carry out the dead man’s intent.
Khabbaz v. Commissioner of Social Security Administration, 930 A.2d 1180 (N.H. 2007)
DUGGAN, J.
Pursuant to Supreme Court Rule 34, the United States District Court for the District of New
Hampshire (Barbadoro, J.) certified the following question for our consideration:
Is a child conceived after her father's death via artificial insemination eligible to inherit from
her father as his surviving issue under New Hampshire intestacy law?
We respond in the negative.
The district court's order provides the following facts. Donna M. Eng and Rumzi Brian Khabbaz
were married in September 1989 and, six years later, had a son together. In April 1997, Mr. Khabbaz
was diagnosed with a terminal illness. Subsequently, he began to bank his sperm so that his wife
could conceive a child through artificial insemination. He also executed a consent form indicating
that the sperm could be used by his wife “to achieve a pregnancy” and that it was his “desire and
intent to be legally recognized as the father of the child to the fullest extent allowable by law.” Mr.
Khabbaz died on May 23, 1998.
Christine C. Eng Khabbaz was conceived by artificial insemination after Mr. Khabbaz's death, using
his banked sperm, and was born in the summer of 2000. At some point thereafter, she sought social
security survivor's benefits. Under federal law, her eligibility for the benefits depends upon whether
she can inherit from her father under state intestacy law. As the federal district court explained:
[U]nder the Social Security Act (the “Act”), an individual who is the “child” of an insured wage
earner and is dependent on the insured at the time of his death is entitled to child's insurance
benefits. 42 U.S.C. §402(d)(1). In determining “child” status, the Act instructs the Commissioner [to]
... apply such law as would be applied in determining the devolution of intestate personal property
by the courts of the State in which such insured individual was domiciled at the time of his death.
Applicants who according to such law would have the same status relative to taking intestate
personal property as a child of parent shall be deemed such. Thus, if Christine may inherit from Mr.
Khabbaz as his surviving issue under New Hampshire intestacy law, she is considered to be the
“child” of Mr. Khabbaz under the Act and is therefore entitled to child's insurance benefits.
(Quotation, citation, brackets and ellipses omitted.)
The Commissioner of the Social Security Administration (commissioner) denied Christine's
application for survivor's benefits based upon an interpretation of RSA 561:1, our state's intestacy
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