The death of a parent has immediate and lasting impacts on a child. The child will need the emotional support of extended family and friends.
When the parents are divorced, there are also questions about what happens to child support orders. Child support orders are still in effect even if the payee or payor parent dies. Spousal support, on the other hand, does end with the death of either spouse unless specifically stated otherwise in the divorce decree.
An experienced Rhode Island attorney at McIntyre Tate LLP can help the surviving parent through the legal process of modifying child support or child custody.
Effects of Non-Custodial Parent’s Death on Support Orders
The legal and financial obligations of the non-custodial parent don’t end with their death. Rhode Island’s probate statutes expressly say that child support shall continue “as completely as possible.” The decedent’s estate can be used to meet child support responsibilities.
Provisions in the statute are as follows:
- Continues until the child's 18th birthday or such later date or event set forth in the family court's decree of child support
- Is not extinguished by but survives the parent's death
- Is enforceable as a priority creditor's claim from the deceased parent's probate estate
- Is enforceable by imposition of a constructive trust over the deceased parent's non-probate assets by equity petition in the superior court to the extent of any deficiency from the deceased parent's probate estate
- Takes precedence over and must be satisfied prior to any distribution of the deceased parent's probate assets by intestacy or by will
- Cannot be nullified by disinheriting the child
Child support modification petitions are heard in family court when the payor parent is alive. After their death, probate or superior court will hear modification requests. The court may award delinquent and accrued child support with interest to the date of the parent’s death. The court can also award future child support until the child’s 18th birthday offset by the Social Security benefits payable to the child and discounted to present value.
Financial Sources for Child Support
The deceased’s life insurance policy is usually the first step in securing child support payments, including any past-due balance. If the policy names the child as a beneficiary, the surviving parent can call the insurance company to begin the claims process.
The estate can also be tapped to meet obligations. Houses, bank accounts, retirement accounts, cars, and more comprise the estate. A claim can be made against the estate through probate. Rhode Island requires an estate to be open for six months. Like other creditors, child support claims against the estate must be made within that timeframe.
If the probated estate doesn’t satisfy the full obligation, non-probate assets can also be used to pay child support obligations. If the deceased parent gifted their assets just prior to death to someone in an effort to avoid paying, the surviving parent may have a fraudulent conveyance case where they sue the person who received the assets in order to fulfill outstanding past or future child support.
The child may also be eligible to receive Social Security benefits until the age of 18 or older if they are enrolled full-time in high school. A surviving child can get up to 75 percent of the deceased parent’s basic Social Security benefit.
Effects of Custodial Parent’s Death on Support Orders
Child support payments will continue unless the living parent seeks modification to assume custody and child support. The non-custodial parent is generally given custody of the children if the custodial parent dies. When this occurs, the surviving parent can seek a child support modification. They can then make claims against the custodial parent’s estate, social security, and life insurance benefits to help pay the expenses associated with raising the child.
Factors that can complicate custody issues include the following:
- If the non-custodial parent only had supervised visitation
- If the deceased custodial parent had remarried and the stepparent has a strong relationship with the child
- If grandparents or other family members seek custody
An appointed guardian can receive child support from the non-custodial parent as well as from the deceased custodial parent’s estate.
Child Support and Custody Legal Representation
The death of a parent has tremendous emotional and financial implications for surviving minor children. At McIntyre Tate LLP, we have attorneys well-versed in both family law and probate administration to guide surviving parents through the options and legal processes they should undertake to financially support their children.
We also help our divorce clients create strong divorce agreements that consider the possibility of a parent’s death and ensure the child’s needs continue to be met.
Learn how our experience can benefit your divorce, custody, or support case. Schedule a free initial consultation by calling (401) 351-7700 or submitting our online form.