Child Support Suits after the death of a parent in Texas

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 enforcement cases.

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 amount of 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 contacting the 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.

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