Do Child Support Orders Survive the Death of the Payor? by Virginia Ekelund When first encountering this issue, you might assume that the payment of child support should no longer be required if the supporting party has died. After all, if the supporting party has passed, they are no longer working, so why should child support be required if the payor has no income to pay child support? Furthermore, when a supporting spouse dies, there is usually no obligation to pay spousal support, so why should child support be any different? If you believe the answer to the above question is “no,” namely, that child support orders do not survive the death of the payor, you would be wrong.
Child Support Orders Do Survive the Death of the Supporting Party
Once a child support agreement has been incorporated into a court order, the obligation is courtimposed rather than contractual. (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 947) The obligation to provide child support pursuant to that court order will generally continue until the child reaches age 18 (except for a full-time high school student who is not self-supporting until graduation or age 19, whichever occurs first), the child dies or
the child becomes emancipated. (Family Code Sections 4001, 6500, 3901(a)) Case law has firmly established that a child support obligation either by court order or pursuant to a judgment will survive the death of a supporting parent and can be pursued against the payor spouse’s estate. (Taylor v. George (1949) 34 Cal. 2d 552, 556). “In California, the rule is that the obligation of a father (or mother) to support his (or her) minor child which is fixed by divorce decree . . . does not cease upon the father’s (or mother’s) death, but survives as a charge against his (or her) estate.”. (See: In re Marriage of Bertrand (1995) 33 Cal. App. 4th 437, 440); In re Marriage of Gregory (1991) 230 Cal. App. 3d 112, 115.
The Support Order or Judgment Can Even be Enforced Against a Trust by Either the Probate or the Family Court
A child support claim can be made against a trust established by a deceased payor of child support. A supporting parent’s estate, for purposes of a child support order, includes property placed in a living
trust. Probate Code, § 19001(a), provides a clear statement of legislative intent that property put into a living trust (i.e., one subject to the trustor’s power of revocation) must be available to satisfy a valid child support obligation (which is a creditor’s claim), no matter what the trust’s terms of distribution. In fact, a claim for child support may be made in either the probate court or it may be made in the family law court. Although Probate Code section 17200 gives the probate court exclusive jurisdiction over the “internal affairs of trusts,” there is “concurrent” jurisdiction over “proceedings” by “creditors . . . of trusts.”
The Receipt of Social Security Survivor Benefits Does Not Necessarily Offset a Child Support Obligation
Surprisingly, courts have determined that there is no basis for the proposition that the receipt of significant social security death benefits, even if they exceed the current amount of the child support order, will necessarily satisfy a decedent’s obligation of child support. (See: United States v. Harue Hayashi (9th Cir. 1960) 282 F.2d 599, 604)
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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
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