A Death in the Family:
What is the Impact on
Child Support?
Moderated by:
Rose Bynum, Program Specialist,
OCSE, Region III
Presented by:
Kelly Peiper, Principal Consultant, PSI
Scott Rosenberg, Magistrate, Juvenile
Court, Davidson County, Tennessee
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Agenda
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Identifying the Death
Death of the AF
Death of the NCP
Death of the CP
Death of the Child
Death of the Another
2
Identifying the
Death
3
Verification of Death
Identifying the Death
• CP still the best resource
• Comes over on FCR from SSA
• Check the social security number against the
social security master death index at
http://ssdi.rootsweb.com.
• Use a search engine like google or yahoo to
check the person’s name
• Local Television and Newspaper (internet)
Identifying the Death
State vital records departments.
–See CDC National Center for Health
Statistics for direct access to
individual state and territory
information:
–http://www.cdc.gov/nchs/w2w.htm
Tips from the Minnesota
Historical Society
Certificates are issued and registered in the
county/state in which the death occurred. This
may be different from the county/state of
residence.
– Example: Minneapolis, MN (Hennepin county)
resident dies in car crash near Roseau, MN
(Roseau county). Records will be in Roseau
county where the death occurred, not Hennepin
county.
Death of the
AF
If the Alleged Father Dies
Establish Paternity. Why?
– Knowing who both parents are
– Legal documentation of both parents
– Father's name will be on the birth certificate
– Access to family medical history
– The right to inherit from either parent
Other Potential Benefits
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Social Security Survivor’s Benefits
Veteran’s Survivor Benefits
Insurance
Estate Proceeds
If the Alleged Father Dies
• Check State policy manual
• Collecting DNA
– Court Order
–Coroner
–Exhumation
–Family Testing
• Maryland Case
Social Security Benefits
“Other evidence” supporting paternity. This can be
any other evidence which shows who the child’s
parent is.
• If the disputed parent has died, the child must
show the disputed parent was either living with
the child or contributing to the child’s support
when he or she died.
• Other evidence” can be anything that shows
paternity, including videos, birthday cards, even
school registration or permission forms. Use your
imagination here.
Establishing Parentage
• Must have a named Defendant when suing to establish
parentage and AF is deceased.
- In the Matter of Paternity of CMR, 871 N.E.2d 346, (IN Ct.App. 2007)
• Heirs of decedent may be joined as parties if no estate.
- T.C.A.20-5-104
• Jurisdiction over deceased defendant is jurisdiction over heirs.
- In the matter of Constance P. v. Avraam G., 27 A.D.3rd 754 (NY S.C.A.D 2006)
Establishing Parentage
• Parentage and Probate statues have different goals. Suit to
establish parentage filed after close of estate is not time
barred. Claims for child support are time barred.
- Fazilat v. Feldstein, 848 A.2d 761, NJ S.Ct. 2004)
• The Court may compel heirs to submit to DNA testing.
- Doe v. Suntrust Bank, 32 So.3d 133, (FL D.C.A 2010)
• The Court may order the AF’s body exhumed to conduct DNA
testing.
- Wawrykov v Simonich, 652 A.2d 843, (PA Sup. Ct. 1994)
- Martin v Howard, 643 S.E.2d 229 (VA S.Ct. 2007)
Death of the
NCP
Support Obligations of the NCP
• A parent’s liability for future support is
normally terminated at death.
- Burnham v Burnham, 884 So.2d 390 (Fla.App.2.Dist. 2004)
• Some States extend that duty beyond the
death of the NCP by statute or case law.
– Berg v D.D.M., 603 N.W.2d 361
• Duty to support can extend beyond death by
contract.
- Garcia v Gonzalez 654 So.2d 1064 (Fla.App.3.Dist. 1995)
Social Security Benefits
Surviving Child Benefits
• Available if the person worked for up to 10
years, depending on the person’s age at the
time of death
• Children entitled to a monthly payment until
age 18, unless a student or disabled
• Online lists the documents you need when
applying at the office
Social Security Benefits
• Child support obligation to the estate is offset
by the SS survivor benefits received by the
child.
– Young v Young, 654 N.E2d 880 (IN Ct.App. 1995)
– L.W.K v E.R.C, 735 N.E2d 359 (MA Sup Jud. Ct. 2000)
• Embryo implanted after death of father not
entitled to SS survivor benefits from father.
– Finley v Astrue, 270 S.W.3d 849, (AR S.Ct. 2008)
The Estate
• Someone files a petition in probate court asking for an estate
to be probated
• The probate of someone’s estate refers to the process by
which a Court recognizes the person's death and authorizes
the administration of that person's estate.
• Applies both when 1) someone dies leaving a Will and when
2) someone dies without a Will (intestate)
• All assets are identified, debts paid, and remaining assets
distributed according to either the provisions of his or her
Will, or
• If no Will, property is distributed according to state law
regarding intestacy
Identifying the Estate
• Probate is generally filed in the county where
the deceased resided at the time of death.
Contact the clerk.
• Probate:
Executor/personal representative is tasked
with notifying creditors – either through mail
or by posting a notice.
• Reasonable diligence is required
Estate Distribution
• If you are notified, have roughly 60 days to file
a claim. Otherwise, have around 4 months to
file, depending on state law. Query what if no
SOL in your state?
• Estate is insolvent if not enough to pay all
creditors – assets are then prorated
Procedure to File Creditor’s Claim
• Specific creditor’s claim form
• Federal Notice of Lien can be used across state lines
• Priority is under the Uniform Probate Code, but varies from
State to State. The UPC allows the following order:
– The costs and expenses of the administration of the estate, the
personal representative, filing fees, attorney’s fees, etc.
– Funeral expenses
– Federal taxes and debts
– Medical expenses
– State taxes and debts
– All other claimants including creditors
– Heirs
Claims against the Estate
• Estate is liable for child support arrears
- Pierce v. Higgins 531 A.2d 1221
• Claim against the estate is governed by the 21 year
SOL under paternity statute.
- In re Estate of Murcury, 868 A 2d 680 (VT S.Ct. 2004)
• Claim against the estate is governed by the 1 year
SOL to file claims against the estate.
- In re Estate of Snapp 2010 WL 1924017 (Tenn. Ct.App. 2010)
• Claim for child support arrears outweighs claim of
crime victim for sums due to estate in settlement of
a civil claim.
– New York State Crime Victims Board v Zaffuto, 196 Misc.2d 602
(2003)
Death of the
CP
If the CP Dies
Ongoing child support
– Death of a custodial parent does not terminate
child support, unless the obligor gets custody of
the child/ren
– Generally, the support order follows the child
– Until the order is modified, the obligor continues
to pay at the existing support amount
If the CP Dies
Ongoing child support
– How does the new custodian become the new CP?
• Is an order modification needed? If so, is this to change
the support amount, the obligee, or both?
• Will an administrative “change of payee” work?
– Can the local child support office continue to
enforce the case?
If the CP Dies
Arrears up to time of death
• Two Schools of Thought
1. Arrears are owed to the custodial parent
• Arrears owed at time of death reduce to a judgment,
and become an asset of the CP’s estate
• Asset is distributed to beneficiaries of estate by probate
or laws of intestate succession
• Child may or may not benefit
If the CP Dies
2. Arrears are owed to the child
• Child support is considered a benefit which vests in the
child for whom it is ordered
• Past arrears constitute an entitlement
• Arrears become collectible and disbursable to the
child’s new custodian
• Theory that if the new custodian receives the money,
the child will directly benefit
• In some cases, emancipated children may be entitled to
past-due support arrears
If the CP Dies
• Case closure issues
– IV-D assignment ends when CP dies
– Unless assignment is received from new custodian, IV-D
involvement must cease
– Uncertainty how to reflect payee at court level or SDU
• Inactivate account until custodian appears
• Convert to “direct-pay” case to payee-yet-to-be-identified
• Court or SDU hold monies for specific period of time awaiting
appearance of new custodian
If the CP Dies
• New CP Identification
– If known, new CP should be given IV-D application
or other referral to gain assignment
– Upon receipt of assignment, tribunal or court
must be informed of change of payee by order or
other administrative notification
If the CP Dies
Establishment/Modification issues
• Should support change?
– In income-share model states, death of a parent
constitutes a change of circumstances warranting
a modification
– Modification not automatic or retroactive, unless
provided by state law
– No change in percentage-of-income states, as
other parent info irrelevant
If the CP Dies
Establishment/Modification issues
• Calculating support for establishment or
modification
– Only parents have legal obligation to financially
support children
– Support should be based on the obligor’s income
alone, no matter the model used
– Custodian’s income should not be used, unless
specifically required by law
When the CP dies
• If mother dies the child’s guardian has standing to bring the
parentage suit.
- Watt v OCSE, 217 S.W.3d 785 (AR S.Ct. 2005)
• Collection of CP arrears terminates but collection of State
arrears continues.
- Skan v Alaska DOR CSSD, 2009 WL 279097
• Guardian has separate suit for support and entitled support
retroactive to the date of custody.
- Kirkpatrick v O’Neal, 197 S.W.3d 674 (Tenn. S.Ct. 2006)
Death of the
Child
If the Child Dies
Single child cases
• Termination of support
– Support should terminate as of the date of death
of the child
– All subsequent payments should be credited
toward arrears owed at date of death
– Hearing/order should be scheduled or submitted
as soon as possible to avoid any chance of
overpayment or appearance of “windfall” to
custodian
If the Child Dies
Multiple child cases
• Termination of support
– If order is per-child order, automatically adjusts
effective as of the date of death of the child
– If order is not per-child, death of one or more
children constitutes a change of circumstances
warranting a modification
– Modification is not automatic nor retroactive,
unless otherwise provided by state law
When the Child Dies
• Petition for child support filed after death of child is
denied. Statute provides that duty to support
terminates at death of child.
– Hardy v Wilbourne, 259 S.W.3d 405 (AR S.Ct. 2007)
• Court can assess liability for funeral expenses in a
paternity action if the child is deceased.
– T.C.A. 36-2-311(12).
• Alleged father petition to establish parentage after
death was denied as no evidence of paternity was
available.
– Humphrey v. Gammage, 2003 WL 21077741(Tenn.Ct.App.)
Death of
Another
If Someone Else Dies
• Get as much information about the decedent
and estate as possible.
• With a name, date of death and location,
contact the local Register of Wills to
determine if anything has been filed.
• Call the probate office or family of the
deceased to verify the obligor's amount of
inheritance and the date the estate will be
distributed.
If Someone Else Dies
• Contact the obligor for a voluntary
assignment.
• If the obligor refuses and is not in compliance
with the support order, file a Petition for
Contempt and obtain the assignment in court.
• File the lien in probate court, if necessary. The
judgment acts as a lien against the
inheritance.
If Someone Else Dies
• If you find out about the inheritance
after the fact, have the court order the
NCP to pay it over for child support
arrears
• If nothing else, it is proof of contempt for
failure to pay
Planning Ahead
• Ordering life insurance?
- T.C.A. 36-5-101(g)
- Hankins v. Hankins, 920 S.W.2d 433
• Contract to provide support
• Establishing a trust
• Determine Social Security benefits
• Determine if there is a will and if the child is included
Questions
Contact Information
Rose M. Bynum,
Program Specialist
Phone: 215-861-4033
Fax: 215-861-4090
Email: Rose.Bynum@acf.hhs.gov
Contact Information
Kelly Peiper
Principal Consultant, PSI
100 Army Post Road
Des Moines, IA
515-943-0567
kpeiper@policy-studies.com
Contact Information
Magistrate W. Scott Rosenberg
Juvenile Court of Davidson County, Tennessee
100 Woodland St., Nashville, Tennessee 37213
615-862-8038
scottrosenberg@jis.nashville.org