Is It Possible To Collect Child Support from a Deceased Parent?
California child support laws require parents to provide financially for their children, even if they do not live with them. The financial support is paid to the custodial parent (the parent whom the child lives with most of the time). The custodial parent depends on the child support payments to pay for the child’s essential needs, including food, housing, and clothing.
However, what happens if the paying parent dies? Can the custodial parent seek child support payments from the deceased parent’s estate?
Child Support Payments from a Deceased Parent
Even though a parent dies, it does not terminate child support payments. The deceased person’s estate is legally responsible for paying the child support payments as long as the child support obligation remains.
In other words, if the child is under 18 years old, the child support payments should come from the deceased parent’s probate estate. In some cases, a child can receive support if they are still in high school and under 19 years old. Dependent children with disabilities might be eligible for child support payments even after they turn 18.
How Does a Parent Collect Child Support Payments from a Probate Estate?
A probate estate consists of all the property a person owned at the time of their death. Assets in a probate estate include real estate, personal property, and intangible property. The value of the estate depends upon what assets the person owned when they died.
If the estate has sufficient assets to pay the remaining child support payments, the estate should continue sending the custodial parent the regular support payments. However, the custodial parent might need to attend a hearing or petition the court to obtain the payments. Child support payments take precedence over other claims filed against the probate estate, including child support arrearage owed by the deceased parent.
The child support obligation must be ordered before the parent’s death. If there was not a child support order in place, the custodial parent could file for a family allowance from the deceased parent’s estate under Probate Code §6540.
Unfortunately, some parents do not have an estate large enough to continue paying child support payments. In that event, the custodial parent would not continue receiving payments. However, there could be other sources of income for the child.
For example, the deceased parent might have a life insurance policy naming the child as the beneficiary. If so, the custodial parent could petition the court to use those funds for the child’s upkeep, maintenance, and education. Additionally, the child might be entitled to receive Social Security benefits under the deceased parent’s account.
What Happens to Child Support Payments if the Custodial Parent Dies?
If the custodial parent dies, the obligation to pay child support continues because the payments are for the child’s benefit. Whoever obtains custody of the child has the right to receive child support payments for the child. If the remaining parent obtains custody, the child support obligation terminates.
How Can a Parent Protect a Child’s Right To Receive Child Support?
When negotiating a divorce settlement, it is essential to consider the future. For example, what happens if your child’s other parent dies? Would there be sufficient assets to pay the child support payments?
Parents can insist that the non-custodial parent has a life insurance policy naming the child as a beneficiary. The agreement can be incorporated into a divorce settlement. A life insurance policy should have enough coverage to pay child support until the child is emancipated.
Another option would be for the parents to agree to place the property in an irrevocable trust for the child’s benefit. The trust’s terms could stipulate the trust pays child support until the child is emancipated if the probate estate cannot pay the support payments for any reason.
How Does California Calculate Child Support Payments?
Like many other states, California has child support guidelines that dictate how much a parent should pay for child support. The state uses a standard formula to calculate child support payments. Child support is based on each parent’s net disposable income and how much time the child spends with each parent.
The child support calculation is a base for child support payments. However, the court might consider other factors that could increase the support payments. For example, the judge may consider the cost of health care, child care, special needs, and education when deciding how much to order for child support payments.
Parents are free to agree to pay higher amounts than the child support guidelines require. Also, the parents could negotiate a longer term for child support payments, especially if the child intends to attend college while living with the custodial parent.
A Beverly Hills child support lawyer helps parents fight for the support their child deserves directly from the other parent or on their behalf from the state or school.
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If you’re going through a divorce, you need a strong team on your side fighting for your rights. Call Berenji & Associates today to know how we can assist you.