In many cases when parents are either divorced or legally separated, there is an obligation for the non-custodial parent (or joint-custodial parent with higher income) to pay child support to the custodial parent (or joint-custodial parent with lower income) for the care and maintenance of the minor children that they share. Michigan law requires that these payments continue until the child reaches the age of majority, the child is adopted, the child emancipates by operation of law (e.g. marriage, military service), or the circuit court terminates payments through court order. However, the child support payer may die before the minor children turn 18, which may put the custodial parent in a compromising financial position. Does the deceased payer (or the estate) have any obligation to pay child support after death?
There is no statute in Michigan that clearly states whether the child support obligation continues after the payer dies. However, on October 4th, 2012, the State Court Administrator’s Office (SCAO) issued a memorandum (2012-07) laying out guidelines to all the circuit courts and all friend of the court offices regarding when child support should stop and when child support should continue. Accordingly, SCAO indicates that the duty to support ends when one of the following events occur:
- The child marries. MCL 722.4(2)(a).
- The child begins active military duty. MCL 722.4(2)(c).
- The child reaches 18 years old and there is no provision for post-majority support. MCL 722.4(2)(b).
- The child support order provides for post-majority support AND the child is still a full-time high school student that has not reached age 19 ½. MCL 552.605b(2).
- The payee dies and no legal responsibility with a third party is established (no statute cited).
- The payer dies (no statute cited).
It would appear that the death of the payer terminates the current support obligation under state guidelines, at least until a court of competent jurisdiction determines that the SCAO guidance is erroneous. Other states do have provisions that require the estate to continue child support obligations after the parent has passed on, but Michigan does not have any laws on point with this.
Keep in mind that, while current support obligation might terminate, the deceased parent is still responsible for the payment of any child support arrears that have accumulated and became due and payable on the date of death. The custodial parent and/or the friend of the court may file a creditor claim against the decedent’s estate demanding payment for child support arrears that the parent left behind. Child support arrears would be payable ahead of any bequest and inheritances paid to heirs and devisees, but would be paid after any costs of administration, reasonable funeral expenses, or allowances and exempt property due under the Estates and Protected Individuals Code. In fact, The personal representative has a duty to notify the friend of the court for the county in which the estate is being administered in the same manner that other interested persons would be notified. MCL 700.3705(6). The death of the payer will not erase the child support debt owed, but it does stop further support payments from accumulating.
In the event that there are no child support arrears to be had, the custodial parent has a few options available to locate funding to raise the minor child:
- The custodial parent should inquire of the personal representative (or the trustee of the trust), assuming that he or she doesn’t receive notice beforehand, whether or not the minor child is entitled to any support from the deceased parent’s estate or trust. It is possible that the deceased parent set up a trust to ensure ongoing support payments to the minor child until the age of majority. Even if the child did receive an inheritance, the custodial parent does not have a right to use that property for support but, rather, must ensure it is safeguarded until the child becomes an adult and may take full advantage of it. It is possible that a conservator may be appointed by the probate court to protect the child’s inheritance during his or her minority if there is a concern that the custodial parent will dissipate it. The child may also be entitled to receive assistance through the family allowance from the estate. Even if not provided for in the last will and testament, the child may have a right to receive exempt property from the estate (assuming there is no surviving spouse).
- The child may have a right to receive survivor’s benefits from the Social Security Administration that can be as much as 75% of the deceased parent’s basic Social Security benefit. A child can receive benefits until age 18, but this can continue until two months after the child’s 19th birthday if still attending high school or can continue indefinitely if the child is disabled (and the disability occurred before age 22). To apply, the custodial parent will need to know both the child and the deceased parent’s social security number.
- The child may be the beneficiary of a life insurance policy set up by the deceased parent, of which those funds can be used for the child’s care. If a life insurance company does not try to contact the child after a reasonable time following death, the custodial parent should inquire with the personal representative or trustee whether they have any knowledge regarding life insurance policies set up by the decedent.
The death of the paying parent and the loss of child support payments can be a trying time for both the surviving parent and the minor child. If you need guidance on where to turn next, a skilled lawyer may be of great assistance to you. If you or a loved one need assistance with any legal matter, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.
