sickwithsadness said:
My husband is obligated to pay child support for out of wedlock child he fathered while married to me. If he were to die before this child reached 18, would I be obligated to pay the remaining child support payments for this child even though the child is not related to me? Please advise. We live in California.
My response:
Get your husband a life insurance policy, with the child being the beneficiary of at least $500,000.00. Otherwise, his Estate will be responsible for payment of the child support, which in turn, will impact you.
Court-ordered child support survives the death of the noncustodial parent and becomes a charge upon his or her estate. [Taylor v George (1949) 34 Cal 2d 552, 212 P2d 505] Similarly, there is no legal or policy reason to terminate a child support order when a custodial parent dies and the noncustodial parent does not assume custody. A child’s need for support does not terminate when the custodial parent dies, and persons who assume the financial burden of caring for a child following the death of the custodial parent should not be forced to expend their resources to enforce an existing support obligation. If the noncustodial parent believes that modification or termination of the support obligation is justified, he or she must resort to the court. [In re Marriage of Gregory (1991, 1st Dist) 230 Cal App 3d 112, 281 Cal Rptr 188]
A child support obligation cannot be offset by Social Security payments paid to a minor as a result of the death of the child support obligor. Fam C §4504 provides that Social Security Act or Railroad Retirement Act payments made to a child because of the retirement or disability of the obligor parent "shall be credited toward the amount ordered by the court to be paid for" child support "unless the payments made by the federal government were taken into consideration by the court in determining the amount of support." In enacting Fam C §4504, it was apparently the legislature’s intent to relieve the burden of a living retired or disabled parent, but death "does transport the noncustodial parent into another realm beyond the mitigating munificence of mortal legislators." Family Code §4504 therefore was clearly intended to apply only to retired or disabled, but not dead, child support obligors. [In re Marriage of Bertrand (1995, 3rd Dist.) 33 Cal.App.4th 437, 39 Cal.Rptr.2d 151] The reasoning of Bertrand combined with the reference in Fam C §4504 to the Railroad Retirement Act probably means that payments made to a child as a result of his or her parent’s death will not offset a child support obligation. The Bertrand court, however, offered hope to decedents’ estates that have a child support obligation by stating that a "trial court can nevertheless consider" the Social Security payments to the child when ruling on a motion to modify child support.
The fact that the deceased payor parent had placed all of his assets in a living trust did not prevent the court from enforcing a child support order against his estate. " . . . There is no difference in substance between an estate which may be properly charged with the child support obligation and property held by a living trust" (emphasis in the original). [In re Marriage of Perry (1997) 58 Cal.App.4th 1104, 1106, 68 Cal.Rptr.2d 445] Also, Social Security payments made to a child because of the death of the parent is not a credit against that parent’s child support obligation. [In re Marriage of Robinson (1998) 65 Cal.App.4th 93, 76 Cal.Rptr.2d 134] Family Code §4504 permits Social Security or Railroad Retirement payments to a child as a result of the retirement or disability (but not the death) of the parent to be credited against the parent’s monthly child support obligation.
IAAL
