Amen v. Astrue

AMEN v. ASTRUE 	691
Cite as 284 Neb. 691
And assuming that Kohmetsher and Bartusek reapply for their
positions during these new competitive examinations, should
the county consider these individuals’ qualifications based
upon their original date of hire or can it consider the additional
years of experience each presumably has gained?
It may be that the new examinations ordered by this court
provide a proper resolution to this case. But the remedy as
ordered could result in penalizing innocent employees, and it
is not dictated by law. As such, I would leave it to the district
court to craft an appropriate remedy upon a consideration of all
the facts and circumstances.
Stephan, J., joins in this concurrence and dissent.
M eliSSa aMen, individually and on behalf of her
Minor child, K.l.a., plaintiff, v. M ichael
J. aStrue, coMMiSSioner of the Social
Security adMiniStration, defendant.
822 N.W.2d 419
Filed November 16, 2012. 	No. S-11-1094.
1. Statutes: Appeal and Error. The rules of statutory interpretation require an
appellate court to give effect to the entire language of a statute, and to rec-
oncile different provisions of the statutes so they are consistent, harmonious,
and sensible.
2. ____: ____. Statutory language is to be given its plain and ordinary meaning,
and an appellate court will not resort to interpretation to ascertain the meaning of
statutory words which are plain, direct, and unambiguous.
3. ____: ____. In construing statutory language, an appellate court attempts to give
effect to all parts of a statute and avoid rejecting as superfluous or meaningless
any word, clause, or sentence.
4. Statutes. It is not within the province of a court to read a meaning into a statute
that is not warranted by the legislative language.
5. Decedents’ Estates. In order for a lineal descendant to inherit from an intestate
estate, a descendant must survive the decedent.
6. Decedents’ Estates: Minors. A child, conceived after his or her biological
father’s death through intrauterine insemination using his sperm and born within
9 months of his death cannot inherit from his or her father as his surviving issue
under current Nebraska intestacy law.
7. Courts: Legislature: Public Policy. A court cannot contradict the Legislature on
matters of public policy.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

692 	284 NEBRASKA REPORTS
8. Constitutional Law: Legislature: Public Policy. The Nebraska Constitution
obliges the Nebraska Supreme Court to leave reformation of this state’s public
policy to the Legislature.
9. Courts: Questions of Law. Neb. Rev. Stat. § 24-219 (Reissue 2008), which
grants the Nebraska Supreme Court the authority to answer certified questions,
limits those answers to questions of law which are certified.
Certified Question from the U.S. District Court for the
District of Nebraska. Judgment entered.
Maureen McBrien, of Brick & Sugarman, L.L.P., and Susan
K. Sapp, of Cline, Williams, Wright, Johnson & Oldfather,
L.L.P., for plaintiff.
Karen P. Seifert, of U.S. Department of Justice, Civil
Division, Federal Programs Branch, for defendant.
heavican, c.J., connolly, Stephan, MccorMacK, M iller-
lerMan, and caSSel, JJ., and riedMann, Judge.
MccorMacK, J.
NATURE OF CASE
Pursuant to Neb. Rev. Stat. § 24-219 et seq. (Reissue 2008),
the U.S. District Court for the District of Nebraska certified the
following question to this court: “Can a child, conceived after
her biological father’s death through intrauterine insemination
using his sperm, and born within nine months of his death,
inherit from him as his surviving issue under Nebraska intes-
tacy law?”
BACKGROUND
In accordance with § 24-221, the following facts were pro-
vided by the U.S. District Court in its certification request:
Joshua Amen and Melissa Amen married on June 5, 2004. Prior
to their wedding, Joshua was diagnosed with cancer. Before
beginning cancer treatment, Joshua cryogenically preserved his
sperm at a sperm bank. In October 2006, during Joshua’s ongo-
ing cancer treatment, Melissa underwent a fertility treatment
cycle with Joshua’s consent and support. Joshua passed away
on November 24, 2006, while domiciled in Nebraska.
Seven days after Joshua’s death, Melissa underwent intra-
uterine insemination using Joshua’s cryopreserved sperm.

AMEN v. ASTRUE 	693
Cite as 284 Neb. 691
The procedure was successful, and Melissa gave birth to a
child, K.L.A., in August 2007. Joshua is K.L.A.’s biological
father.
On August 31, 2007, Melissa applied to the Social Security
Administration (SSA) for mother’s insurance benefits and sur-
viving child’s insurance benefits, on behalf of K.L.A., based on
Joshua’s earnings record. SSA denied the application initially
and upon reconsideration.
After the initial determination, Melissa filed a request
for rehearing on April 13, 2009. On February 26, 2010, an
administrative law judge (ALJ) decided that K.L.A. was
entitled to child’s insurance benefits on Joshua’s Social
Security record.
SSA’s Appeals Council chose to review the ALJ’s hearing
decision upon its own motion, pursuant to 20 C.F.R. § 404.969
(2010). The Appeals Council reversed the ALJ’s decision. The
council found that because K.L.A. does not have inheritance
rights in the wage earner’s estate under the laws of the State
of Nebraska, she is not a “child” of the wage earner, Joshua,
under the Social Security Act, 42 U.S.C. § 416(h)(2)(A) and
(B) or (3)(C) (2006),1 and therefore is not entitled to child’s
insurance benefits.
On November 8, 2010, Melissa filed an appeal of the final
decision of the Commissioner of Social Security pursuant to 42
U.S.C. § 405(g) (2006) in the U.S. District Court.
ANALYSIS
our anSwer to certified Q ueStion
We are asked to determine whether, under Nebraska intes-
tacy law, a child conceived after her biological father’s death
through intrauterine insemination can inherit from her father’s
intestate estate. To begin, Neb. Rev. Stat. § 30-2301 (Reissue
2008) states: “Any part of the estate of a decedent not effec-
tively disposed of by his will passes to his heirs as prescribed
in the following sections of this code.”
1 See Astrue v. Capato ex rel. B.N.C., ___ U.S. ___, 132 S. Ct. 2021, 182 L.
Ed. 2d 887 (2012).

694 	284 NEBRASKA REPORTS
Neb. Rev. Stat. § 30-2303 (Reissue 2008) provides in rel-
evant part:
The part of the intestate estate not passing to the
surviving spouse under section 30-2302, or the entire
intestate estate if there is no surviving spouse, passes
as follows:
(1) to the issue of the decedent . . . .
(2) if there is no surviving issue, to his parent or par-
ents equally.
Under Neb. Rev. Stat. § 30-2209(23) (Reissue 2008), “[i]ssue”
is statutorily defined as “all his or her lineal descendants of
all generations.”
Neb. Rev. Stat. § 30-2304 (Reissue 2008) states in part:
“Any person who fails to survive the decedent by one hun-
dred twenty hours is deemed to have predeceased the dece-
dent for purposes of homestead allowance, exempt prop-
erty and intestate succession, and the decedent’s heirs are
determined accordingly.” Lastly, Neb. Rev. Stat. § 30-2308
(Reissue 2008), the afterborn heirs statute, states: “Relatives
of the decedent conceived before his death but born there-
after inherit as if they had been born in the lifetime of the
decedent.” The remaining intestacy statutes are irrelevant to
our answer.
[1-4] The rules of statutory interpretation require an appel-
late court to give effect to the entire language of a statute,
and to reconcile different provisions of the statutes so they
are consistent, harmonious, and sensible.2 Statutory language
is to be given its plain and ordinary meaning, and this court
will not resort to interpretation to ascertain the meaning of
statutory words which are plain, direct, and unambiguous.3 The
court attempts to give effect to all parts of a statute and avoid
rejecting as superfluous or meaningless any word, clause, or
sentence.4 It is not within the province of this court to read
2 Republic Bank v. Lincoln Cty. Bd. of Equal., 283 Neb. 721, 811 N.W.2d
682 (2012).
3 Woodhouse Ford v. Laflan, 268 Neb. 722, 687 N.W.2d 672 (2004).
4 Butler Cty. Sch. Dist. v. Freeholder Petitioners, 283 Neb. 903, 814 N.W.2d
724 (2012).

AMEN v. ASTRUE 	695
Cite as 284 Neb. 691
a meaning into a statute that is not warranted by the legisla-
tive language.5
[5] With our fundamental rules of statutory interpretation
as guidance, we begin our analysis by examining § 30-2303.
It establishes that the issue of the decedent, including lineal
descendants, can inherit from a decedent’s intestate estate.6
K.L.A. is a lineal descendant of Joshua. However, Nebraska
intestacy 	law 	includes 	an 	important 	limitation. 	Section
30-2303(2) states that “if there is no surviving issue,” then the
intestate estate passes to the decedent’s parents. This plainly
means that in order for the lineal descendant to inherit from the
intestate estate, a descendant must survive the decedent.
This plain meaning is reaffirmed statutorily by § 30-2304,
which requires any heir to survive the decedent by “one hun-
dred twenty hours.” Nebraska statutes have not defined “sur-
vive.” But, the afterborn heirs statute was clearly intended as
an exception to the survival requirement.7 Section 30-2308
allows an heir, who is not born at the time of the decedent’s
death, to inherit “as if [he or she] had been born in the lifetime
of the decedent.” (Emphasis supplied.) Thus, the Legislature
conveys that being born in the lifetime of the decedent is
otherwise a requirement for the child to be considered “surviv-
ing issue.”
[6] Section 30-2308 contains a plain, direct, and unambig-
uous limiting clause to the afterborn heirs exception. The heir
must be conceived before the father’s death. Therefore, our
answer to the certified question is no. A child, conceived after
her biological father’s death through intrauterine insemina-
tion using his sperm and born within 9 months of his death
cannot inherit from her father as his surviving issue under
current Nebraska intestacy law. A child conceived after her bio-
logical father’s death does not “survive” her father as required
under § 30-2304. Further, such a child is unambiguously
excluded from inheriting under § 30-2308 because she was not
5 Metropolitan Comm. College Area v. City of Omaha, 277 Neb. 782, 765
N.W.2d 440 (2009).
6 § 30-2303(1).
7 See § 30-2308.

696 	284 NEBRASKA REPORTS
conceived prior to her father’s death. Our answer is consistent
with at least four other courts that have interpreted the same,
or similar, afterborn heirs statutes to exclude posthumously
conceived children.8
[7,8] Although the result is unfortunate for K.L.A., we
are bound to the ordinary meaning of the relevant statutes.
The plain, direct, and unambiguous language of the survival
requirement under § 30-2304 and the afterborn heirs exception
under § 30-2308 represent Nebraska’s public policy on this
issue. We have previously stated that this court cannot con-
tradict the Legislature on matters of public policy.9 Therefore,
we will not resort to statutory interpretation when the ordi-
nary meaning of the statute is plain and obvious.10 Unlike the
New Jersey trial court decision11 cited in Melissa’s brief, we
cannot ignore the statute’s literal meaning to create a favor-
able result for K.L.A.12 The Nebraska Constitution obliges
this court to leave reformation of this state’s public policy to
the Legislature.13
Therefore, the plain and ordinary meaning of §§ 30-2304
and 30-2308 is that under current Nebraska law, a child con-
ceived after her biological father’s death cannot inherit from
her father as surviving issue for purposes of intestacy.
M eliSSa’S conStitutional challenge
In Melissa’s brief, she argues that if we apply Nebraska
intestacy laws to deny posthumously conceived children rights
in an intestator’s estate, the statute as applied would violate the
8 See, e.g., Vernoff v. Astrue, 568 F.3d 1102 (9th Cir. 2009); Beeler v. Astrue,
651 F.3d 954 (8th Cir. 2011), cert. denied ___ U.S. ___, 132 S. Ct. 2679,
183 L. Ed. 2d 62 (2012); Stephen v. Commissioner of Social Sec., 386
F. Supp. 2d 1257 (M.D. Fla. 2005); Finley v. Astrue, 372 Ark. 103, 270
S.W.3d 849 (2008).
9 Murray v. UNMC Physicians, 282 Neb. 260, 806 N.W.2d 118 (2011).
10 Woodhouse Ford v. Laflan, supra note 3.
11 In re Estate of Kolacy, 332 N.J. Super. 593, 753 A.2d 1257 (2000).
12 See Metropolitan Comm. College Area v. City of Omaha, supra note 5.
13 See, Alsidez v. American Family Mut. Ins. Co., 282 Neb. 890, 807 N.W.2d
184 (2011); Nebraska P.P. Dist. v. City of York, 212 Neb. 747, 326 N.W.2d
22 (1982).

STATE v. RAMIREZ 	697
Cite as 284 Neb. 697
Equal Protection Clause of the Nebraska Constitution. Without
addressing the merits of Melissa’s equal protection challenge,
we find the constitutional question is not properly before
this court.
[9] As we did in Givens v. Anchor Packing,14 we refuse to
address the merits of the constitutional challenge raised by
Melissa. Section 24-219, which grants this court the authority
to answer certified questions, limits our answers to questions of
law which are certified.15 There was no constitutional question
within the question certified to us by the U.S. District Court.
For this reason, we will not substantively address Melissa’s
constitutional challenge.
CONCLUSION
The answer to the certified question is no, a child conceived
after her biological father’s death through intrauterine insemi-
nation using the father’s sperm and born within 9 months of
his death cannot inherit from the father as his surviving issue
under Nebraska intestacy law. Further, Melissa’s constitutional
challenge is not properly before this court and therefore cannot
be substantively answered.
JudgMent entered.
wright, J., not participating.
14 Givens v. Anchor Packing, 237 Neb. 565, 466 N.W.2d 771 (1991).
15 See id.
State of nebraSKa, appellee, v.
arevalo raMirez, appellant.
823 N.W.2d 193
Filed November 16, 2012. 	No. S-12-178.
1. Effectiveness of Counsel: Records: Appeal and Error. The fact that an inef-
fective assistance of counsel claim is raised on direct appeal does not necessarily
mean that it can be resolved. The determining factor is whether the record is suf-
ficient to adequately review the question.
2. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective
assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing.