[ 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 USCA11 Case: 20-11656 Date Filed: 10/12/2022 Page: 1 of 14 RESTRICTED2 Opinion of the Court 20

- 11656

____________________

Before N EWSOM , B RANCH , and L AGOA , Circuit Judges.

L AGOA , Circuit Judge : This case requires us to apply old statutes to new problems. Philip Steele cryopreserved several sperm samples before his death

. H is 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 “Administration”) denied the claim for CIB
, and the administrative law judge, the magistrate judge, and the d istrict 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 Flo rida 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. S

ee id. § 416(h)(2)(A)

. The district court, the magistrate judge, and the administrative law judge all concluded no, reason ing that
, under Fl orida 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 C ourt, which is the final arbiter of Florida law, has not published a decision addressing this USCA11 Case: 20-11656 Date Filed: 10/12/2022 Page: 2 of 14 RESTRICTED20

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question, principles of comity and federalism suggest that the Florida Supreme Court should decide this issue. See WM Mobile Bay Env’t Ctr., Inc. v. City of Mobi le 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. Th e 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. U sing one of those samples 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 w ill through his attorney , Louie Adcock. The w ill specifically listed his living children
, but it also stated, “The terms ‘children’ and ‘lineal descendants’ shall include those later born or adopted and whenever used in this instrument shall be equivalent to blood relationship an d relationship 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 application, she attached P.S.S.’s birth certificate, which listed Mr. Steele USCA11 Case: 20-11656 Date Filed: 10/12/2022 Page: 3 of 14 RESTRICTED4 Opinion of the Court 20

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as the father. She al so submitted letters from Mr. Adcock , who had helpe d prepare Mr. Steele’s will, and Dr. Julio Pabon, who had carried 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 believe d 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 lett er, 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, t h e 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 denial after Ms. Steele sought reconsideration

. Ms. Steele then sought review of the ag ency’s decision by an administrative law judge , who denied the claim . The administrative law judge explained that, to qualify for CIB, the claimant must be the deceased individual’s “child” within the meaning of the Social Security Act, which in turn depe nded on whether “the claimantcould inherit a child’s share of the insured individual’s intestate personal property under the law of the State in which the insured USCA11 Case: 20-11656 Date Filed: 10/12/2022 Page: 4 of 14 RESTRICTED20

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individual was domiciled when he died”

— here, Florida. Applying Florida law, the administrat ive law judge concluded that P.S.S. could not recover intestate property. T he 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 tha t, under section 742.17(4), posthumously concei ved children could “only inherit through the person’s will,” not through intestacy. T he 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 other wise indicate his intent to provide for any child conceived after his death.” The Appeals Council declined Ms. Steele’s request for review of the administrative law judge’s decision

. Having exhausted her administrative remedies, Steele filed suit in fed eral court against the Commissioner of the Social Security 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 nocase law where a Florida court had specifically applied section 742.17 “to determine 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 determining 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.” USCA11 Case: 20-11656 Date Filed: 10/12/2022 Page: 5 of 14 RESTRICTED6 Opinion of the Court 20

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a magistrate judge
, who issued a report and recommendation that

recomm ended 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 qualify as an ‘afterborn heir’ under Florida intestacy law because he was b orn seventeen months after the death of Mr. Steele.” The magistrate judge also found that the administrative law judge’s interpretation of section 742.17(4) was correct in determining that “posthumously 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 intestacy laws because there was a will

— Mr. Stee le’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 f il ed objections to the report and recommendation. The district court overruled her objections and adopted the magistrate judge’s report and recommendation

. Th is appeal ensued.

II. ANALYSIS On appeal, Ms. Steele argue s that the district court erred in adopting the magistrate j udge’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 USCA11 Case: 20-11656 Date Filed: 10/12/2022 Page: 6 of 14 RESTRICTED20

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with intesta te 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 propert y of hisparent, Mr. Steele, under Florida law. And, as such, Ms. Steele contends that P.S.S. is considered a “child” within the meaning of the Social Security Act and is entitled to CIB. In response, the Commissioner 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 inherit only through the decedent’s will, if provided for, and thus not through intestacy.

We first turn t o 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 specified age limits (18 or 19) or is under a disability which began priorto age 22, and was dependent on the insured at the time of the insured ’ s death. ” Astrue v. Capato ex rel. B.N.C. , 566 U.S. 541, 54 7 (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 individual, (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 address es the term “child.” This statute

— 42 U.S.C. § 416(h)(2)(A)

—provides that “[i]n determining whether an applicant is the child or parent of [an] individual USCA11 Case: 20-11656 Date Filed: 10/12/2022 Page: 7 of 14 RESTRICTED8 Opinion of the Court 20

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for purposes of this subchapter, the Commissioner of Socia l Security shall apply [the intestacy law of the insured individual ’ s domiciliary 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 ‘c hild’ ‘for purposes of th[e] subchapter’ that includes § 416(e)(1).” See i d. at 558 (alteration 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 person al property through intesta cy

. Whether posthumously conceived children can inherit through intestacy under Florida law is a question of first impression for this Court. And b ecause the issue before us involves question s of statutory interpretation, “we be gin ‘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 Holding Corp. , 985 F.3d 1290, 1297 (11th Cir. 2021)). In determining the plain meaning of a statute, “we consider ‘the “ particular statutory language at issue ”’ as well as ‘t he language and design of the statute as a whole. ’” Id. (quoting Wachovia Bank, N.A. v. United Stat es , 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 heir s,” Fla. Stat. § 732.101(1), which includes “the descendants of the decedent,” id. § 7 32.103(1). Under Florida Statute § 731.201(9), a USCA11 Case: 20-11656 Date Filed: 10/12/2022 Page: 8 of 14 RESTRICTED20

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“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, grandchildre n, 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 decedent ’ 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, magistrate 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 p robate code; rather, it is in Florida’s domestic 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 no t be eligible for a claim against the decedent ’ s estate unless the child has been provided for by the decedent ’ 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 USCA11 Case: 20-11656 Date Filed: 10/12/2022 Page: 9 of 14 RESTRICTED10 Opinion of the Court 20

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inherit the decedent’s intestate personal property because thatposthumously conceived child could only inherit through the deceden t’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 Commissioner asserts that intestacy under Florida law “occurs when a beneficiary 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 creat ed 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. S teele argues that section 742.17(4)allows a posthumously conceived child to inherit a decedent’s personal 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 interpretat ions. 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, w e also note the placement of section 742.17(4) within the Florida code

— it i s in the USCA11 Case: 20-11656 Date Filed: 10/12/2022 Page: 10 of 14 RESTRICTED20

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title of the Florida code concerning domestic relations, not the probate code. And we note that no Florida court has applied section 742.17(4) in this manner , although the administrative law judge believed that Florida courts would apply section 742.17(4) in determining a claimant’s intestacy rights given Florida state court precedent. On the other hand, the phrase “ unless the child has been provided for by the decedent ’s will” in section 742.17(4) can be reasonably read as a condition for a posth umously conceived child to inherit 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 provi ded 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 o f 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 USCA11 Case: 20-11656 Date Filed: 10/12/2022 Page: 11 of 14 RESTRICTED12 Opinion of the Court 20

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Florida Supreme Court

. 2 See WM Mobile Bay , 972 F.3d at 1251 ; In re Mooney , 812 F.3d 1276, 1283 (11t h Cir. 2016). A s 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 effectivel y disposed of by will passes to the decedent ’ s heir s,” 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 inh erit a decedent’s property intestate. 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). Another provision, Florida Statute § 732.108(2), applies to “persons born ou t of wedlock,” but it is unclear to us if any of th e requirements within this statute apply to posthumously conceived children, especially because Florida Statute § 732.106 specifically defines “afterborn heirs” (and excludes posthumously conceived childre n from that definition). USCA11 Case: 20-11656 Date Filed: 10/12/2022 Page: 12 of 14 RESTRICTED20

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We therefore certify to the Florida Supreme Court the following question s under Florid a Rule of Appellate Procedure 9.150 : 3 (1) Under Florida law, is P.S.S. “ provided for ” in the decedent’s will within the meaning of Fla. Stat. § 742.17(4) ? (2) If the answer is yes, d oes Florida law authorize a posthumously conceived child who is provided for i n the decedent’s will to inherit intestate the decedent’s property? Our phrasing of th ese question s “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 giv en. ” 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

3 Under a rticle V, section 3(b)(6) of the Florida constitution , th e Florida Supreme 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 determinat ive 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 procedure s governing those discretionary proceedings to review such certified questions. USCA11 Case: 20-11656 Date Filed: 10/12/2022 Page: 13 of 14 RESTRICTED14 Opinion of the Court 20

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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 certified question . The entire record of this case, including the parties’ briefs, is transmitted to the Florida Supreme Court. QUESTION CERTIFIED. USCA11 Case: 20-11656 Date Filed: 10/12/2022 Page: 14 of 14 RESTRICTED