To my ex-husband’s credit, he has been regularly making his court-ordered spousal support and child support payments to me for the benefit of our two minor children and myself. Recently, he was diagnosed with pancreatic cancer, and his prospects are poor. In the event of his death, is his estate obligated to maintain those support payments? Is there anything I would need to do in order to ensure that our children and I continue to receive support?
The death of a party to a family court proceeding has varying effects upon existing orders for spousal support and child support.
With respect to spousal support (sometimes called alimony), the death of either the supporting party or the supported party terminates an existing spousal support order unless the parties have “otherwise agreed” in writing. However, there may be ambiguity as to what “otherwise agreed” really means. If you learn of the passing of your ex-husband, you should immediately contact your divorce lawyer and have him/her review with you the divorce decree to see whether there is language (or the absence of language) in the court’s order that would cause the obligation to continue after your ex’s death.
As to child support, the strong public policy protecting minor children leads to the conclusion that court-ordered child support does not terminate on the death of the payor spouse unless the support order provides to the contrary. Child support is based on the child’s support needs during the child’s minority. It is chargeable against the estate of the deceased payor parent. Further, child support is actually modifiable following the death of the payor spouse.
What you must be mindful of in enforcing the child support order following your former spouse’s death, and the spousal support order where it is possible to do so, is that you are required to timely file a creditor’s claim against your ex’s decedent’s estate, also called probate estate, and there are tight time constraints for doing so. Unless your divorce attorney is knowledgeable about probate law, he/she should consult with a probate attorney to check this out, so that you are properly advised.
By Howard S. Klein
This FAQ was first published in Divorce Magazine and is reprinted with their permission.