Child Support and Death
If you practice Family Law, you know that the duty of child support as to an unmarried child continues until a child is 18 or if still in high school, age 19. Family Code 3901.
What happens if the payor dies? Death of a parent is tragic – in every sense. But what if the parents are divorced, and one is paying child support? Does the support terminate? What happens?
Death of Non-Custodial Parent: In California, even if the non-custodial parent (payor) dies, the child support obligation doesn’t. Many California cases have held that an order to pay child support resulting from a Stipulated Judgment or Marital Settlement Agreement survives the death of the payor parent, and the custodial parent can collect against the estate to fulfill this obligation.* The estate of the deceased can include real estate, retirement/pensions, personal property, life insurance proceeds. The living parent can also seek benefits on behalf of the child from Social Security if the deceased has acquired them through employment. If the payor owes arrears, you can also collect this from his estate.
*Notably, however, the child support has to be set forth in a child support order PRIOR to death. If a parent’s obligation to support a child is set forth in a child support court order (or Judgment), the support order is enforceable against the deceased non-custodial parent by filing a creditor’s claim in the deceased parent’s probate action. See Stein v. Hubbard (1972) 25 Cal.App. 3d 603. IF THERE IS NO ORDER, the custodial parent is limited to applying for an award of family allowance from the deceased non-custodial parent’s estate per Probate Code 6540.
Death of a Custodial-Parent: What if the recipient of child support dies? Again, the child support payments will continue unless the living parent seeks modification of child custody, assumes custody and also seeks modification of child support. If the caretaker is NOT the living parent, and rather is a family member – they would be able to step into the shoes of the decedent and collect child support from the payor.
If you are the recipient of child support, you should always consider inserting a provision for life insurance in the Judgment.