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) regarding conservatorship, possession, access and child support.
The court will continue to address issues with the order for child support matters until the total amount of child support is paid and the obligation to do so has been met. The number of periodic payments on current child support can also be adjusted in future enforcement cases.
The death of a child support obligor
The obligor is the term that a child support court uses to refer to the parent responsible for paying 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. 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 if 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.
If your order is a SAPCR and not a final decree of divorce, your court will hold the same sort of 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
The reason is that under the Texas Probate Code, a probate court has the jurisdiction to hear any 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
I have been asked before whether or not the unpaid child support of an obligor ex-spouse survives them after they pass 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 their estate.
If your ex-spouse passes away, you must file a lawsuit in the family court that has jurisdiction over your case to have the arrearages reduced to a money judgment. This is done to 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 expressly. 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 become accelerated once your ex-spouse passes away, meaning that you can 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 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 they pass away.
How are other obligations related to a Divorce Decree handled in the event of death?
Other obligations may be relevant to your divorce that could have been unmet in the event of the 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 a responsibility towards or your ex-spouse not fulfilling 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 your divorce court had adopted 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 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 an 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, PLLC. 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 is available six days a week.
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Other Articles you may be interested in:
- Can I Still get Child Support After the Paying Spouse Dies in Texas?
- The effect of a death after your divorce in Texas
- Nonmarital Children's Paternity and Death of Alleged Father
- Can I Add My Dad's Name to My Birth Certificate If He is Dead?
- Texas Child Support Enforcement
- Can my Texas Driver's License Be Suspended for Not paying Child Support?
- What do I do if I have overpaid child support in Texas?
- Child Custody Basics in Texas
- Texas Child Support Appeals
- In Texas, are Child Support and Visitation Connected?
- Why Ignoring Child Support Obligations is a Bad Idea in Texas
- Texas Child Support – Trust and Annuities
- Special Needs Children in Texas Child Support Cases
- How to get above guideline child support.
Law Office of Bryan Fagan, PLLC | Houston, Texas Child Custody Lawyers
The Law Office of Bryan Fagan, PLLC, routinely handles matters that affect children and families. If you have questions regarding child custody, it's essential to speak with one of our Spring, TX Child CustodyLawyers right away to protect your rights.
Our child custody lawyers in Spring, TX, are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact the Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC, handles Divorce cases in Spring, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County, and Waller County.