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What Happens If the Payor of Child Support Dies Before Child Emancipates?

by Steve Fritsch on May 20, 2013

When a child support order is made it is anticipated and of course hoped that the payor or obligtor parent will be alive until the child emancipates.  But unfortunate things happen and a parent may die prior to the child emancipating.  If the parent that is paying child support dies the question becomes what happens to the child support order?  A child support order is a court-imposed obligation which is based on the child’s need for support until the child reaches emancipation.  The need of the child nor does the child support obligation automatically terminate by a parent’s death.  Marriage of Gregory (1991) 230 CA3d 112, 116.  Therefore, it will continue despite the obligor parent’s death or the obligee parent’s death.  Marriage of McCann (1994) 27 CA4th 102, 106-107.

If the parent that dies has a child support obligation the logical question is how does a dead person pay child support?  The outstanding child support obligations survive the obligor parent’s death as a charge against his or her estate.  Taylor v. George (1949) 34 C2d 552, 556.   If the obligor parent has put his or her property into a living trust, the child support obligation is enforceable against the trust property notwithstanding the trust’s distribution terms.  Prob. C §19001(a); Marriage of Perry (1997) 58 CA4th 1104, 1109.  Furthermore, if the deceased obligor parent had remarried, the support debt is chargeable against community property acquired during that marriage.  Prob.C. §§13550, 13551; Marriage of D’Antoni (1981) 125 CA3d 747, 749-750.

DISCLAIMER:  The above article is intended for educational and informational use only and is not intended to be legal advice in any way.  If legal advice is need, an attorney should be consulted.

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