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Divorce can be a complicated process with uncertain results, especially when it comes to the issues of spousal maintenance and child support. Many married couples structure their families so that one partner is the primary wage earner while the other is the primary caregiver for their children. Some partners sacrifice lucrative careers and many years in the workforce in order to care for the children at home. Even if there are no children from the marriage, one spouse may earn significantly more money than the other. In the event of a divorce, a court may require alimony payments to be made by the higher-earning ex-spouse to the lower-earning partner for a specified period of time.
Furthermore, maintenance and child support are not limited to divorce cases. The Family Court can also award maintenance in appropriate cases when the couple is still married but physically separated. The same is true with child support—the Family Court can award child support to physically separated spouses as well as unmarried parents.
In some unfortunate cases, one partner may die while spousal support or child support payments are still owed under the terms of the divorce decree or Family Court order. Whether you are thinking about separating, in the midst of a support proceeding, or if you are currently making or receiving support payments, it’s important to understand what might happen to those payments in the event that you or your ex passes away.
Pursuant to Domestic Relations Law § 236-B (6)(c), the death of either spouse will cause maintenance payments to be terminated. This is also usually explicitly stated in parties’ settlement agreements. The rationale behind this rule is that maintenance is the obligation of one spouse to provide support to the other because of their former union in matrimony. Accordingly, the courts will not obligate a spouse to pay maintenance to a deceased maintenance recipient’s estate, nor will they obligate the relatives of a maintenance payor to continue paying a surviving spouse.
It is possible that, should the supporting partner die while still under the obligation of making alimony payments, the decedent’s estate would still be required to continue providing those payments. However, it would have to be stated in writing as a condition of the divorce. Regardless, a deceased partner’s estate may have no further assets to dispense, in which case it would not be possible to make any payments at all. Other obligations imposed on the estate may also prevent further alimony payments, such as the prior assignment of assets to children, children from other marriages, another ex-spouse, or yet further individuals.
In all states, there are strong precedents under family law establishing the health and welfare of children, and that includes child support. The death of either the supporting or custodial parent does not release the parent from the obligation to pay child support for minor children. There are obvious challenges in enforcing this policy, as the deceased parent no longer has income to pay an ongoing support obligation, and their estate may not have the available assets to continue making the required child support payments for the duration of the child’s minority.
Many states have solved this conundrum by requiring that a supporting parent purchase and maintain a life insurance policy adequate to satisfy their entire child support obligation in a lump sum. Moreover, life insurance is a common addition to marital settlement agreements, as it can be used to secure the couple’s various obligations to each other under the agreement in the event of their demise. Divorcing or separating spouses may stipulate obtaining life insurance sufficient to cover their child support obligations, their maintenance obligations, any distributive award, or even pension benefits that may become nullified by the titled spouse’s death. Sometimes, the parent receiving child support will also agree to maintain a life insurance policy to cover their estimated child support obligation, as the other parent would become the primary custodial parent in the event of their death.
The requirement to maintain life insurance should protect child support recipients in the event of an obligor’s death, but this requirement is not always fulfilled. If a child support obligor does not have sufficient life insurance at the time of death, the other parent will have to seek payment via the probate process. One thing to keep in mind is that, following the death of a supporting spouse, there is a short time window to file a creditor’s claim against the decedent’s estate, or probate estate. Probate estates tend to have limited assets to assign to the estate’s various creditors and/or bequests and must follow established probate law to dispense with those assets as quickly and efficiently as possible.
Many divorce lawyers have only cursory knowledge of probate law, so unless your family law attorney is also experienced with probate law, you or they may wish to consult with a probate attorney to explore your options after the death of your former partner. This is true when it comes to enforcing a child support order as well as any alimony payments, if applicable.
If a child support obligor leaves behind a significant estate, it’s likely that the parent entitled to support will have less trouble in this regard. Perhaps the support obligation has already been accounted for in an established will or estate plan. But if the estate has few assets to disburse, then it would be important for the support recipient to act fast to secure their rights to spousal support payments from the decedent’s estate before it becomes impossible.
At Tully Rinckey, we have extensive knowledge and experience both with family and matrimonial law as well as trusts, estate planning, and probate law. We are your go-to resource if you have any questions about what happens to alimony and child support payments if your ex-spouse dies. Contact us today to schedule a consultation or find out more about how we can help!
Michael Liptrot is senior counsel in Tully Rinckey PLLC’s Manhattan office, where he focuses his practice on family and matrimonial law. For close to a decade, Michael has practiced family law across New York City, including the five boroughs, the lower Hudson Valley area, and New Jersey. Throughout his time practicing, Michael has gained a vast amount of experience in family and matrimonial law, with specific experience in divorce, custody, child support, family offense, neglect/abuse, guardianship, and SIJS (Special Immigrant Juvenile Status) matters. He can be reached at firstname.lastname@example.org or at (888)-529-4543.