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Thursday, August 5, 2010

If a person paying child support dies, does his estate have to pay the support?


Child support is usually paid monthly over a period of years, until a child reaches a certain age. Sometimes the parent who is paying the support dies before the child has reached that age. Then the question arises as to whether the parent's estate should continue to pay the child support. Whether any money is paid out of the estate for this depends on the facts.


First of all, the arrears of child support are treated differently from the ongoing monthly obligation. If there were arrears owing by the parent at the date of his or her death, that is clearly a debt that will be paid by the estate (assuming there is enough money in the estate).


The question of whether the present and future ongoing child support payments will be paid from the estate depends on whether the parent paying the support expressed any intentions about it. Look first to the Will. Does the parent say anything in the Will about paying child support? Often the paying parent will have a clause in his or her Will that allows the executor to calculate how much the present and future obligations would be, and to pay that in a lump sum amount. By doing that, the child who depends on the payments doesn't get shortchanged, and the estate can still be wound up quickly.


If there is nothing in the Will about child support payments, look at the court order or signed agreement that set up the payments in the first place. Does it say anywhere that the order or agreement would "bind the estate", or bind the payor's "executors, heirs, assigns" etc? If those words, or others very similar in nature, are in the document, then the estate will have to pay the ongoing and future child support. Again, it can be calculated and paid out as a lump sum.


If there is nothing in the Will, and nothing in the agreement or court order, then the estate does not have to pay the ongoing and future child support.


The executor will have to settle this question quite early on in the estate because unpaid child support would have to be listed on the inventory of the estate as a debt.

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