As a result of a divorce, many parents are ordered to make child support payments until the child turns 18 (or 19 if he or she is still in high school, living at home, and cannot support himself or herself). Child support is designed to help with child care costs and all other expenses that are associated with being a full-time parent. If children are young at the time of the divorce, child support payments may continue for quite some time.
Unfortunately, during that often lengthy period of time the payor parent (the parent paying child support) might die prior to the time his or her child support obligations have been completed. If this happens, the question remains whether the child support payments then terminate upon the payor parent’s death.
While the death of the parent would be devastating enough for any child, it would be even worse if that child then had to suffer financially as well because the child support payments would no longer be received on his or her behalf. Luckily in California, when a non-custodial parent who is ordered to pay child support dies, his or her obligation to continue to pay child support lives on.
Several cases in California have specifically held that an order to pay child support pursuant to a divorce decree or settlement agreement survives the death of the payor parent and remains a charge against the payor’s estate. The payor’s estate might include bank accounts, 401(k)s, cars, houses, etc. The living, custodial parent would need to file a creditor’s claim against the payor spouse’s estate. To the extent that they are part of the probate estate, child support payments would take priority over other obligations of the estate.
But what if the deceased payor parent doesn’t leave an estate sufficient to cover his or her remaining child support obligation? One way to ensure that child support payments will continue to be received after the payor parent’s death is to secure those payments through a life insurance policy. California Family Code Section 4012 states that “upon a showing of good cause, the court may order a parent required to make a payment of child support to give reasonable security for the payment.” In other words, this gives the court authority to require a parent to provide life insurance as security for child support.
Another option is for the surviving parent to seek benefits on behalf of the child from the Social Security Administration if the deceased parent was gainfully employed for a period of time.
The obligation to support a child does not die with the parent. To arrange an initial consultation to discuss the obtaining child support following a parent’s death please seek help from a qualified family law attorney. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights in a divorce. Contact us today at 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.