If you have gone to a
family law court in Texas and had an order issued from the judge that relates to
child support (known as an Order in Suit Affecting Parent Child Relationship (SAPCR)) then that court will continue to have jurisdiction to change the order
(modify) in regard to conservatorship,
possession, access and child support.
For child support matters, the court will continue to be able to address
issues with the order until the full amount of
child support is paid and the obligation to do so has been met. The amount of periodic
payments on current child support can also be adjusted as need be in future
The death of a child support obligor
Obligor is the term that a child support court uses to refer to the parent
who bears the responsibility to pay child support. If your child’s
other parent is the obligor of child support and passes away after a
Final Decree of Divorce has been entered then there will be no effect on the future
obligation to pay child support to you in support of your children. The
family law court that issued your divorce decree will continue to have
jurisdiction over your case.
A caveat to this rule is that if a probate court, in the event that your
ex-spouse’s estate is pending, elects to take over those proceedings
from the family law court. This is not done automatically when your ex-spouse
dies and there is no clear rule as to when a probate court would elect
to do so. Your children are still subject to the orders of the family
law court if your ex-spouse were to die after your divorce has been finalized
as long as they have not reached the age of majority.
In the event that your order is a SAPCR and not a final decree of divorce,
your court would hold the same sort as jurisdiction over matters related
to your children. That court can modify your order when appropriate and
when motioned to do so and where a substantial change in circumstances,
of either party or any child, is shown.
Probate Court vs. Family Law Court at the time of a spouse’s death
Should your spouse die during your divorce it may be transferred to a probate
court in order to determine any issues regarding the dividing of your
marital property. The reason is that under the Texas Probate Code, a probate court has
the jurisdiction to hear any and all matters that relate to the administration
of property belonging to the estate of a deceased person. Since a divorce
would cover issues related to dividing up and distributing property related
to your deceased spouse it makes sense that a probate court would have
some say in the matter.
More on Child Support after the death of an ex-spouse
A question that I have been asked before is whether or not the unpaid child
support of an obligor ex-spouse survives him or her after he or she passes
away. The answer is that, yes, the unpaid child support that an ex-spouse
may owe to you and your children does survive their passing and becomes
the responsibility of his or her estate.
In the event that your ex-spouse passes away, you must file a lawsuit in
the family court that has jurisdiction over your case in order to have
the arrearages reduced to a money judgment. This is done in order so that
you can take that judgment to the probate court which is handling matters
regarding the estate of your now deceased ex-spouse. The personal representative
of your ex-spouse’s estate would act as the respondent or defendant
of your enforcement case. You first need to get a judgment against the
estate of your ex-spouse and once this is done you can take that judgment
to the probate judge as a claim against their estate.
What about the future child support obligations of your deceased ex-spouse?
Child support obligations of a deceased parent do not terminate upon their
death and become the responsibility of their estate- even if your divorce
decree does not state this specifically. The reason is that the Texas
Family Code in section 154.006(a) provides for this protection for you
as a spouse who is entitled to receive those payments on behalf of your children.
Future child support payments actually become accelerated once your ex-spouse
passes away meaning that you can actually seek a lump-sum payment of future
child support obligations from the estate of your deceased spouse. The
family court that issued your order will determine the amount of child
support that will be owed in the future. Again, the personal representative
must be notified of these proceedings.
Finally, part of this process entails your ex-spouse maintaining a life
insurance policy that will allow for a trust to be established for the
benefit of your children. You will act as the trustee of that trust and
it will satisfy the child support obligation of your ex-spouse even after
he or she passes away.
How are other obligations related to a Divorce Decree handled in the event of death?
There are other obligations that may be relevant to your divorce that could
have been unmet in the event of a death of your ex-spouse, other than
child support. For instance, your ex-spouse could have been ordered to
make payments to you of a certain sum of money that were left unpaid as
a result of their passing away. The failure to pay a debt that both you
and your ex-spouse have responsibility towards or your ex-spouse not being
able fulfill their obligation to pay spousal maintenance could all arise
if your ex-spouse were to pass away.
Property Division if your ex-spouse were to pass away
Suppose that your now deceased ex-spouse and you had agreed in a Mediated
Settlement Agreement (MSA) that had been adopted by your divorce court in the form of a final decree
of divorce. Under the agreements contained in the MSA regarding the division
of marital property, your ex-spouse became obligated to pay you a monthly
spousal maintenance until the time that your youngest child reached 18 years of age. You had
agreed to this in exchange for giving up other rights to property that
you ordinarily could exercise based on the
community property laws of Texas.
Now you find yourself where both of your children have not yet reached
age 18 and your ex-spouse suddenly passed away. Unfortunately there have
been issues getting your ex-spouse’s estate to pay the spousal maintenance.
What are your options?
You can file a claim against your ex-spouse’s estate to enforce the
provisions related to spousal maintenance. Specifically, if your MSA provided
that you would be able to receive any life insurance proceeds on a policy
taken out by your ex-spouse on his life and 2) an agreement that provided
you with an interest in certain stocks that he owned should he fail to
abide by the agreement to pay the spousal maintenance as ordered. It is
likely that if you bring a lawsuit against the executor of your ex-spouse’s
estate that you would be successful, based on prior cases in Texas.
Life Insurance, Debts and more on Child Support to be discussed in tomorrow’s blog post
Please join us again tomorrow as we go through additional information related
to the passing of a ex-spouse. In the meantime, if you have any questions
regarding this or any other subject in family law please consider
Law Office of Bryan Fagan. Our attorneys represent clients across southeast Texas and we would be
honored to speak to you doing the same for you and your family.
A consultation with one of our licensed family law attorneys is free of
charge and are available six days a week.