Recently, a prior client who I had represented in her divorce came in to discuss some recent developments in her case. Her questions caused me to look into an area of child support law that I was aware of but have not had occasion to deal with. Recently, the father of her daughter had passed away.
In the child support order from her case, there was standard language included saying that that child support did not terminate on the death of child’s father but remained as an obligation of the estate. What my prior client wanted to know was what that meant for her and her daughter. The language in question is as follows:
“Support as Obligation of Estate
IT IS ORDERED that the provisions for child support in this decree shall be an obligation of the estate of FATHER and shall not terminate on the death of FATHER. Payments received for the benefit of the child, including payments from the Social Security Administration, Department of Veterans Affairs or other governmental agency or life insurance proceeds, annuity payments, trust distributions, or retirement survivor benefits, shall be a credit against this obligation. Any remaining balance of the child support is an obligation of FATHER’s estate.”
After looking at the language from the decree, I then looked at the following statutes:
- Texas Family Code Section 154.013
- Texas Family Code Section 154.015
- Texas Family Code Section 155.001(a)
- Texas Family Code Section 155.002
- Texas Family Code 157.269 and
- Estate Code Section 355.102
Continuation of Duty to Pay Support After Death of Obligee
Texas Family Code Sec. 154.013 states that “(a) A child support obligation does not terminate on the death of the obligee but continues as an obligation to the child named in the support order, as required by this section.”
Acceleration of Unpaid Child Support Obligation
Texas Family Code Sec. 154.015 states that:
“(b)…If the child support obligor dies before the child support obligation terminates, the remaining unpaid balance of the child support obligation becomes payable on the date the obligor dies.
For purposes of this section, the court of continuing jurisdiction shall determine the amount of the unpaid child support obligation for each child of the deceased obligor. In determining the amount of the unpaid child support obligation, the court shall consider all relevant factors, including:
- the present value of the total amount of monthly periodic child support payments that would become due between the month in which the obligor dies and the month in which the child turns 18 years of age, based on the amount of the periodic monthly child support payments under the child support order in effect on the date of the obligor's death;
- the present value of the total amount of health insurance premiums payable for the benefit of the child from the month in which the obligor dies until the month in which the child turns 18 years of age, based on the cost of health insurance for the child ordered to be paid on the date of the obligor's death;
- in the case of a disabled child under 18 years of age or an adult disabled child, an amount to be determined by the court under Section 154.306;
- the nature and amount of any benefit to which the child would be entitled as a result of the obligor's death, including life insurance proceeds, annuity payments, trust distributions, social security death benefits, and retirement survivor benefits; and
- any other financial resource available for the support of the child.”
Acquiring Continuing, Exclusive Jurisdiction
Texas Family Code Section 155.001 states:
- Except as otherwise provided by this section, a court acquires continuing, exclusive jurisdiction over the matters provided for by this title in connection with a child on the rendition of a final order.
Retaining Continuing, Exclusive Jurisdiction
Texas Family Code Section 155.002 states:
Except as otherwise provided by this subchapter, a court with continuing, exclusive jurisdiction retains jurisdiction of the parties and matters provided by this title.
Retention of Jurisdiction
Texas Family Code Section 157.269 states that:
“A court that renders an order providing for the payment of child support retains continuing jurisdiction to enforce the order, including by adjusting the amount of the periodic payments to be made by the obligor or the amount to be withheld from the obligor's disposable earnings, until all current support, medical support, dental support, and child support arrearages, including interest and any applicable fees and costs, have been paid.”
Claims Classification; Priority of Payment in Probate
Estate Code Section 355.102 states that:
“(a) Claims against an estate shall be classified and have priority of payment as provided by this section.
(b) Class 1 claims are composed of funeral expenses and expenses of the decedent's last illness for a reasonable amount approved by the court, not to exceed a total of $15,000. Any excess shall be classified and paid as other unsecured claims.
(c) Class 2 claims are composed of expenses of administration, expenses incurred in preserving, safekeeping, and managing the estate, including fees and expenses awarded under Section 352.052, and unpaid expenses of administration awarded in a guardianship of the decedent.
(d) Class 3 claims are composed of each secured claim for money under Section 355.151(a)(1), including a tax lien, to the extent the claim can be paid out of the proceeds of the property subject to the mortgage or other lien. If more than one mortgage, lien, or security interest exists on the same property, the claims shall be paid in order of priority of the mortgage, lien, or security interest securing the debt.
(e) Class 4 claims are composed of claims:
(1) for the principal amount of and accrued interest on delinquent child support and child support arrearages that have been:
(A) confirmed as a judgment or a determination of arrearages by a court under Title 5, Family Code; or
(B) administratively determined by the Title IV-D agency, as defined by Section 101.033, Family Code, in a Title IV-D case, as defined by Section 101.034, Family Code; and
(2) for unpaid child support obligations under Section 154.015, Family Code.
(f) Class 5 claims are composed of claims for taxes, penalties, and interest due under Title 2, Tax Code, Chapter 2153, Occupations Code, former Section 81.111, Natural Resources Code, the Municipal Sales and Use Tax Act (Chapter 321, Tax Code), Section 451.404, Transportation Code, or Subchapter I, Chapter 452, Transportation Code.”
Texas Case Law
Important Cases on this matter include:
- Williams v. Patton, 821 S.W. 2d 141(Tex. 1991)
- Fleming v. Easton, 998 S.W.2d 252 (Tex. App.–Dallas 1999, no pet.)
Williams v. Patton, 821 S.W. 2d 141(Tex. 1991)
In Williams v. Patton, the Texas Supreme Court held that a family court retains exclusive jurisdiction to enforce its child support orders; however, after the child support arrearages are reduced to a money judgment, the judgment could be presented to the deceased obligor’s estate for payment like any other debt.
However, without a money judgment, a probate court lacks jurisdiction to consider the after-death child support claims.
Fleming v. Easton, 998 S.W.2d 252 (Tex. App.–Dallas 1999, no pet.)
In Fleming v. Easton, the court discussed that the death of the child support obligor under the divorce decree does not change a family court’s continuing, exclusive jurisdiction unless the probate court where the decedent’s estate is pending, “divests” the family court of its continuing, exclusive jurisdiction.
It also went onto discuss that a family court does not automatically lose jurisdiction after the death of the obligor and that the death of one of the parties to a divorce decree does not terminate the continuing jurisdiction of the court that appointed the conservator and any minor children are still subject to further orders and supervision by the court as long as they are minors. It further stated that it is not clear how a probate court can “divest” the continuing, exclusive jurisdiction of a family court.
In this case, Fleming tried and failed to enforce a child support order in probate court. The court indicated that if Fleming had first obtained a judgment in child support court, she could have presented to the estate for a payment.
Credit for Social Security Death Benefits
Prior to the enactment of Texas Family Code Section 154.015, various Texas courts had different opinions on whether a judgment against a decedent’s estate for child support payments should be reduced by the amount of social security or other governmental death benefits paid to the same claimant as a result of the decedent’s death.
As of September 1, 2007, the Family Code was amended to provide that the court of continuing jurisdiction shall determine the amount of the unpaid child support obligation for each child of the deceased obligor considering all relevant factors, including:
- Life insurance proceeds
- Annuity payments
- Trust distributions
- Social security death benefits, and
- Retirement survivor benefits paid to or for the benefit of the child
What this Meant for the Prior Client Based on Her Fact Pattern
After reviewing the various case law and statutes, I came to conclusion that yes, she could accelerate the child support amount her ex would have paid her for child support and reduce it to a judgment.
However, once the court considered what her daughter was now receiving from the government through social security death benefits, it did not make any sense to proceed. This was because the old child support amount was less than what her daughter was now receiving through the death benefits.
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Law Office of Bryan Fagan, PLLC | Kingwood Child Support Lawyer
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding child support, it's important to speak with ar Kingwood, TX Child SupportLawyer right away to protect your rights.
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