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Do Child Support Orders Survive the Death of the Payor? by Virginia Ekelund
by Virginia Ekelund
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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.
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) Continued on page 18
Child Support Orders
Continued from page 17
In Estate of Jameson (1964) 224 Cal.App.2d 517, it was an abuse of discretion to deny an allowance to a minor child on the theory he had “a reasonable maintenance derived from other property” under Probate Code section 682 when all that he had were social security payments. The court reasoned an obligation to pay support under a divorce decree was not met by social security payments which were involuntary so far as the deceased father was concerned.
In Taylor v. George (1949) 24 Cal.2d 552, 556, the court determined that since husband was neither retired nor disabled at the time of the dissolution, the child was not then receiving Social Security benefits and, such benefits, perforce, were not factored into the determination of husband’s support obligation. Although the husband had since died, his child support obligation survived his death and was a charge against his estate.
Regarding future child support payments, the court (whether probate or family) has jurisdiction and discretion to consider what income and assets of the estate or trust are available for support, and to consider what other income is being received by the children, including social security benefits. At that time, the court may order a reduction or an increase in the amount of child support ordered, or possibly even terminate support, retroactive to the time an application for reduction or termination is filed and served. ( Estate of Hoffman (1963) 213 Cal. App.2d 635, 642.)
When a request for modification of child support is made, the court can consider all the circumstances, including, but not limited to, what income is available to the trust or the estate for payment of child support, consider that the minor children are in receipt of social security benefits or what other income is available to them for purposes of support. While the case of In re Marriage of Bertrand (1993) 33 Cal.App.4th 437, held it was judicial error for the trial court to have determined that the social security death benefits satisfied and discharged the estate’s liability for support, that court also stated that: “[t]he trial court did not rule on the executor’s motion to modify. Instead, the court ruled that the Social Security benefits satisfied the estate’s support obligation. Although this ruling was
judicial error, the trial court can nevertheless consider such benefits in ruling on the executor’s motion to modify the support obligation.”
(Emphasis added)
In conclusion, when a supporting payor of child support dies with support orders in place, said orders remain in full force and survive the death of the supporting payor of child support. The recipient of the support may make a claim against the estate, even if all the monies are in trust, until such orders are modified or terminated. In fact, until modified, the amount of child support, including child support add-ons such as childcare, uninsured medical expenses, and so forth will continue to accrue and be payable by the estate until modified or terminated. (Estate of Murphy (1964) 225 Cal.App.2d 224, 236.) If you represent the estate of the deceased child support payor, the sooner you seek a modification of the child support orders on behalf of the estate, the sooner the support obligation may be modified or terminated. If you represent the recipient of child support, be sure to seek support against the estate of the deceased child support payor.
Virginia Ekelund is a Certified Family Law Specialist with with Doyle Quane in Danville, California. She is a graduate of U.C. Berkeley and received her law degree from Santa Clara University. She also recently obtained an LL.M. in Taxation from Golden Gate University, graduating with Honors. In addition to her work as a California State Bar Certified Specialist in Family Law, Virginia also successfully represents clients in a variety of litigation matters including trust disputes and estate related matters. Virginia’s diverse legal experience allows her to quickly identify legal issues and implement the strongest possible strategy to address them.
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