Child Support Post Death of Payor Parent!

For decades California courts have maintained and fostered a strong public policy favoring the establishment, enforcement and modifiability of all child support orders.  The courts have liberally construed statutory law to preserve these powers, even if it meant blatantly disregarding fully executed settlement agreements signed between parties and counsel.  During this period, courts have also addressed the infrequent occurrence of the death of a payor prior to the emancipation of a minor child.
Through case law, we unequivocally know that child support orders not only survive the death of the payor but that said obligation is fully chargeable against the decedent’s estate.  In order to ensure enforceability and potential modification of said support orders, courts have been called upon to and have granted joinder of the decedent’s third party representatives to family law proceedings.  In a scenario where the payor is dead, joinder of a third party is absolutely necessary.  Absent said action, child support orders would be unenforceable and the payee would be denied countless statutorily provided rights regarding child support enforcement and modifiability. 

In the event that the decedent payor’s estate is held by a trust, courts have uniformly granted and upheld the joining of a trustee.  As recognized in California: “‘Unlike a corporation, a trust is not a legal entity. Legal title to property owned by a trust is held by the trustee….’ ‘A… trust … is simply a collection of assets and liabilities. As such, it has no capacity to sue or be sued, or to defend an action.’” Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 522, citing Stoltenberg v. Newman (2009) 179 Cal. App.4th 287, 293.  “‘[T]he proper procedure for one who wishes to ensure that trust property will be available to satisfy a judgment … [is to] sue the trustee in his or her representative capacity.” Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1349 [Emphasis Added].  Trustee’s joinder places it into the shoes of the dead parent and by doing so protects and promotes well-established legal authority and public policy regarding child support.

Bottom line, child support survives death and is fully enforceable against an estate or trust.  

In regards to modifiability, that's an interesting issue that I will address in a separate posting!



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