Many people assume when they divorce with minor children that both parents will be around to see each child through graduation and into college. Just as the death of a spouse is often a shock to his widow financially, the death of an ex-husband can send shockwaves through his former wife’s current family who has been relying upon his financial support of the children. If back child support is owed, the custodial parent may worry that she’ll never recover the money.
A well-prepared divorce decree and separation agreement will attempt to protect minor children in every situation, including the death of a dad who pays child support. In an ideal situation, the divorce decree or agreement will have mandated that this dad provide life insurance to cover much or all of his support obligation until his children become adults or the support obligation ends.
Once a supporting dad has died, support payments die also unless sufficient arrangements were made before his death to continue payment. If, however, he was behind in child support payments, his estate will owe the past-due amount. Once his estate has been opened for probate, his ex-wife, other adult custodian or even state child support enforcement agency may file a claim against his estate with the probate court for back child support. The executor may prevent the accrual of future child support payments by notifying the courts or state child support enforcement agency of the dad’s death. The estate will generally have to pay the child support obligation before assets are disbursed to those named in his will.
A supporting dad with numerous assets may have established a testamentary trust, or a trust created under a will, to provide continuing support for his children. Although the proceeds of this trust will be managed by a trustee that he designated, that trustee will have a duty to disburse the trust proceeds in support of the children as directed by the terms of the trust.
Children as Heirs
If the dad died without a will, the law of the state where the will is probated determines who acquires his assets. If he died without a surviving spouse, his children may be next in line to inherit all of his assets. A court-appointed guardian or conservator would represent the children's interests and pursue immediate possession of estate assets for the benefit of the minor children during probate of the dad's estate.
Social Security Benefits
Minor children generally receive death benefits from Social Security once a parent dies to help compensate for the loss of his income. The amount minor children receive is based upon a percentage of what their deceased dad's benefits would have been had he lived to receive them. The children’s mother or other responsible adult will have to petition the Social Security Administration in order to begin receiving benefits.
References & Resources
- Wilhite & Lea, Attorneys at Law: Life Insurance Obligations
- Gregory S. Forman: Family Law Issues When a Spouse or Parent Dies
- USA.gov: Handbook on Child Support Enforcement
- Probate-Estate-Planner.com: Testamentary Trust
- Strauss & Malk: What Is Probate?
- Social Security: Benefits for Children
- Law Offices of Scott David Stewart: Parent Agreement Outlives NonCustodial Father in Montana Child Support Case
- FtLeavenworthLamp.com: Estate Planning for Those With Minor Children
- Barbara Penoyar/Photodisc/Getty Images