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Some Confusion In My Last Blog

not2sureimsaneanymore's picture

I think it's important to revisit the CO and check if you have language upon the death of the CS payor. If not, at least in NY, IN, and IL, CS payments continue against the late payor's estate. Most people have a life insurance payout to cover whatever is left over and the scary thing is, the CS order can be modified AFTER death.

"It's unfortunate when a parent who was charged with paying child support dies. However, the obligation to support a child does not die with the parent."

via: http://singleparents.about.com/od/statebystateresources/a/child_support_...

"As to child support, the strong public policy protecting minor children leads to the conclusion that court-ordered child support does not terminate on the death of the payor spouse unless the support order provides to the contrary. Child support is based on the child’s support needs during the child’s minority. It is chargeable against the estate of the deceased payor parent. Further, child support is actually modifiable following the death of the payor spouse."

via: http://www.fmbklaw.com/frequent-questions/faq-support-payment-after-death/

I believe, because I read it SOMEWHERE (but not sure where) that the lien of the CS payments trump the wills of the estate. This alludes to it:

"Child support, again, is usually atop the pecking order when an estate is distributed, but there is a particular process involved."

http://blogs.findlaw.com/law_and_life/2013/06/does-child-support-continu...

I know for a fact DH's order doesn't include language about his death, which is why I was worried in my previous blog. But a irrevocable living will for all my properties where our BD is named as the owner of it overcomes that because it's a gift prior to our death.

I was more worried about equitable distribution, in that if DH dies, if that death will cause equitable distribution (for NY) to come into play, and count a portion of my properties as part of his estate for the purposes of collecting CS after his death.

Comments

not2sureimsaneanymore's picture

Yes, it says Social Security can be deducted from what he would owe, but it does not cover everything if the SS payments are less than the CS.

hereiam's picture

I get the reasoning but I'm not sure I agree with the CS being modifiable after death. Do they mean, depending on how much the estate is worth, it can go up OR down?

Is there a way to estimate what the social security payments would be, to see if it would be enough?

Can you get a post nup so that your properties absolutely would not become part of your DH's estate?

I guess I'd be consulting with an estate lawyer.

not2sureimsaneanymore's picture

I did-- a friend of mine is a contract lawyer, but she said that although the law normally states what ripley has mentioned below, there's so little cross language that sometimes the ambiguity can be used against us and that's where the superior courts come in to decide. Basically, better safe than sorry. Don't want to be one of those cases that are referenced in other courts (in the case of xxx vs. yyy).