One of the most important reasons to make an estate plan is to provide for your family after you are gone, but family can be a legally complicated concept. For instance, if you voluntarily make child support payments for a minor who does not live with you, do those payments automatically end upon your death? Alternatively, can an ex-spouse enforce a child support order contained in a divorce decree against your estate?
Child Support Can Be Enforced as a Creditor’s Claim
A recent New Jersey case illustrates how these questions can play out in court. The case involves the estate of a New Jersey man who had a son with a woman who lives in New York. In 2008, the parents entered into a voluntary child support agreement whereby the father agreed to pay the mother $3,000 per month in child support until the son reached the age of 21. The father also agreed to separately pay the child’s medical and educational expenses. A New York State court subsequently entered a child support order based on the parents’ agreement.
The father died suddenly in 2014 at the age of 36. His last will and testament, filed in New Jersey, expressly excluded his son from inheriting from his estate. Instead, he left his entire estate to a daughter from another relationship. The mother of the son then asked the probate court in New Jersey to invalidate the father’s will and enforce the New York child support order against his estate.
A New Jersey appellate court eventually held that the will was valid and the child was legally excluded as an heir. That said, the court said the mother could attempt to enforce the child support order as a creditor’s claim against the estate. In other words, the father’s child support obligations were a debt that the estate could be legally required to pay before making any distributions to the beneficiaries named in the will.
Financially Protecting Your Children
Similar to the New Jersey court’s holding, California judges have routinely said that child support orders may be enforced as debts against a late parent’s estate. It is therefore important for the surviving parent (or other person acting as the child’s guardian) to file a timely creditor’s claim with the personal representative of the estate. And if you are a parent under a child support order, it is a good idea to advise your estate planning attorney so that your will or trust reflects your obligations.
Of course, a child support obligation can only be paid if the estate has sufficient assets. One way to protect your children against a potentially insolvent estate is to take out a life insurance policy. In fact, California law allows a court to order a parent to take out such a policy—or other “reasonable security”—in order to ensure any child support obligations can be paid in the event of unexpected death.
Providing for your children is just one of many issues to consider as part of making a will or trust. A qualified San Diego estate planning lawyer can assist you. Contact the Law Office of Scott C. Soady if you need to speak with an attorney today.