A Death in the Family:

What is the Impact on Child Support?

Moderated by:

Rose Bynum, Program Specialist, OCSE, Region III

Presented by:

Kelly Peiper, Principal Consultant, PSI Scott Rosenberg, Magistrate, Juvenile Court, Davidson County, Tennessee

1

Agenda

• • • • • • Identifying the Death Death of the AF Death of the NCP Death of the CP Death of the Child Death of the Another 2

Identifying the Death

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Verification of Death

Identifying the Death

• • • • • CP still the best resource Comes over on FCR from SSA Check the social security number against the social security master death index at http://ssdi.rootsweb.com

. Use a search engine like google or yahoo check the person’s name to Local Television and Newspaper (internet)

Identifying the Death State vital records departments.

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See CDC National Center for Health Statistics for direct access to individual state and territory information:

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http://www.cdc.gov/nchs/w2w.htm

Tips from the Minnesota Historical Society

Certificates are issued and registered in the county/state in which the death occurred. This may be different from the county/state of residence.

– Example: Minneapolis, MN (Hennepin county) resident dies in car crash near Roseau, MN (Roseau county). Records will be in Roseau county where the death occurred, not Hennepin county.

Death of the AF

If the Alleged Father Dies

Establish Paternity. Why?

– Knowing who both parents are – Legal documentation of both parents – Father's name will be on the birth certificate – Access to family medical history – The right to inherit from either parent

Other Potential Benefits

• • • • Social Security Survivor’s Benefits Veteran’s Survivor Benefits Insurance Estate Proceeds

If the Alleged Father Dies

• • • Check State policy manual Collecting DNA – Court Order – Coroner – Exhumation – Family Testing Maryland Case

Social Security Benefits

• • “Other evidence” supporting paternity. This can be any other evidence which shows who the child’s parent is. If the disputed parent has died, the child must show the disputed parent was either living with the child or contributing to the child’s support when he or she died. Other evidence” can be anything that shows paternity, including videos, birthday cards, even school registration or permission forms. Use your imagination here.

Establishing Parentage

• • • Must have a named Defendant when suing to establish parentage and AF is deceased.

- In the Matter of Paternity of CMR, 871 N.E.2d 346, (IN Ct.App. 2007)

Heirs of decedent may be joined as parties if no estate.

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T.C.A.20-5-104

Jurisdiction over deceased defendant is jurisdiction over heirs.

- In the matter of Constance P. v. Avraam G., 27 A.D.3

rd 754 (NY S.C.A.D 2006)

Establishing Parentage

• • • Parentage and Probate statues have different goals. Suit to establish parentage filed after close of estate is not time barred. Claims for child support are time barred.

- Fazilat v. Feldstein, 848 A.2d 761, NJ S.Ct. 2004) The Court may compel heirs to submit to DNA testing.

- Doe v. Suntrust Bank, 32 So.3d 133, (FL D.C.A 2010) The Court may order the AF’s body exhumed to conduct DNA testing.

- Wawrykov v Simonich, 652 A.2d 843, (PA Sup. Ct. 1994) - Martin v Howard, 643 S.E.2d 229 (VA S.Ct. 2007)

Death of the NCP

Support Obligations of the NCP

• • • A parent’s liability for future support is normally terminated at death.

- Burnham v Burnham, 884 So.2d 390 (Fla.App.2.Dist. 2004) Some States extend that duty beyond the death of the NCP by statute or case law.

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Berg v D.D.M., 603 N.W.2d 361

Duty to support can extend beyond death by contract.

- Garcia v Gonzalez 654 So.2d 1064 (Fla.App.3.Dist. 1995)

Social Security Benefits

Surviving Child Benefits • Available if the person worked for up to 10 years, depending on the person’s age at the time of death • Children entitled to a monthly payment until age 18, unless a student or disabled • Online lists the documents you need when applying at the office

Social Security Benefits

• • Child support obligation to the estate is offset by the SS survivor benefits received by the child.

– Young v Young, 654 N.E2d 880 (IN Ct.App. 1995) – L.W.K v E.R.C, 735 N.E2d 359 (MA Sup Jud. Ct. 2000) Embryo implanted after death of father not entitled to SS survivor benefits from father.

– Finley v Astrue, 270 S.W.3d 849, (AR S.Ct. 2008)

The Estate

• • • • • Someone files a petition in probate court asking for an estate to be probated The probate of someone’s estate refers to the process by which a Court recognizes the person's death and authorizes the administration of that person's estate. Applies both when 1) someone dies leaving a Will and when 2) someone dies without a Will (intestate) All assets are identified, debts paid, and remaining assets distributed according to either the provisions of his or her Will, or If no Will, property is distributed according to state law regarding intestacy

Identifying the Estate

• • • Probate is generally filed in the county where the deceased resided at the time of death. Contact the clerk.

Probate: Executor/personal representative is tasked with notifying creditors – either through mail or by posting a notice. Reasonable diligence is required

Estate Distribution

• • If you are notified, have roughly 60 days to file a claim. Otherwise, have around 4 months to file, depending on state law. Query what if no SOL in your state?

Estate is insolvent if not enough to pay all creditors – assets are then prorated

Procedure to File Creditor’s Claim

• • • Specific creditor’s claim form Federal Notice of Lien can be used across state lines Priority is under the Uniform Probate Code, but varies from State to State. The UPC allows the following order: – The costs and expenses of the administration of the estate, the personal representative, filing fees, attorney’s fees, etc. – – – – – – Funeral expenses Federal taxes and debts Medical expenses State taxes and debts All other claimants including creditors Heirs

Claims against the Estate

• • • • Estate is liable for child support arrears

- Pierce v. Higgins 531 A.2d 1221

Claim against the estate is governed by the 21 year SOL under paternity statute .

- In re Estate of Murcury, 868 A 2d 680 (VT S.Ct. 2004) Claim against the estate is governed by the 1 year SOL to file claims against the estate.

- In re Estate of Snapp 2010 WL 1924017 (Tenn. Ct.App. 2010) Claim for child support arrears outweighs claim of crime victim for sums due to estate in settlement of a civil claim.

– New York State Crime Victims Board v Zaffuto, 196 Misc.2d 602 (2003)

Death of the CP

If the CP Dies

Ongoing child support – Death of a custodial parent does not terminate child support, unless the obligor gets custody of the child/ren – Generally, the support order follows the child – Until the order is modified, the obligor continues to pay at the existing support amount

If the CP Dies

Ongoing child support – How does the new custodian become the new CP?

• Is an order modification needed? If so, is this to change the support amount, the obligee, or both?

• Will an administrative “change of payee” work?

– Can the local child support office continue to enforce the case?

If the CP Dies

• Arrears up to time of death Two Schools of Thought 1. Arrears are owed to the custodial parent • Arrears owed at time of death reduce to a judgment, and become an asset of the CP’s estate • Asset is distributed to beneficiaries of estate by probate or laws of intestate succession • Child may or may not benefit

If the CP Dies

2. Arrears are owed to the child • Child support is considered a benefit which vests in the child for whom it is ordered • Past arrears constitute an entitlement • Arrears become collectible and disbursable to the child’s new custodian • Theory that if the new custodian receives the money, the child will directly benefit • In some cases, emancipated children may be entitled to past-due support arrears

If the CP Dies

• Case closure issues – – IV-D assignment ends when CP dies Unless assignment is received from new custodian, IV-D involvement must cease – Uncertainty how to reflect payee at court level or SDU • • • Inactivate account until custodian appears Convert to “direct-pay” case to payee-yet-to-be-identified Court or SDU hold monies for specific period of time awaiting appearance of new custodian

If the CP Dies

• New CP Identification – If known, new CP should be given IV-D application or other referral to gain assignment – Upon receipt of assignment, tribunal or court must be informed of change of payee by order or other administrative notification

If the CP Dies

• Establishment/Modification issues Should support change?

– In income-share model states, death of a parent constitutes a change of circumstances warranting a modification – Modification not automatic or retroactive, unless provided by state law – No change in percentage-of-income states, as other parent info irrelevant

If the CP Dies

• Establishment/Modification issues Calculating support for establishment or modification – Only parents have legal obligation to financially support children – Support should be based on the obligor’s income alone, no matter the model used – Custodian’s income should not be used, unless specifically required by law

When the CP dies

• • • If mother dies the child’s guardian has standing to bring the parentage suit.

- Watt v OCSE, 217 S.W.3d 785 (AR S.Ct. 2005) Collection of CP arrears terminates but collection of State arrears continues.

- Skan v Alaska DOR CSSD, 2009 WL 279097 Guardian has separate suit for support and entitled support retroactive to the date of custody.

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Kirkpatrick v O’Neal, 197 S.W.3d 674 (Tenn. S.Ct. 2006)

Death of the Child

If the Child Dies

• Single child cases Termination of support – – – Support should terminate as of the date of death of the child All subsequent payments should be credited toward arrears owed at date of death Hearing/order should be scheduled or submitted as soon as possible to avoid any chance of overpayment or appearance of “windfall” to custodian

If the Child Dies

• Multiple child cases Termination of support – If order is per-child order, automatically adjusts effective as of the date of death of the child – If order is not per-child, death of one or more children constitutes a change of circumstances warranting a modification – Modification is not automatic nor retroactive, unless otherwise provided by state law

When the Child Dies

• • • Petition for child support filed after death of child is denied. Statute provides that duty to support terminates at death of child.

– Hardy v Wilbourne, 259 S.W.3d 405 (AR S.Ct. 2007) Court can assess liability for funeral expenses in a paternity action if the child is deceased.

– T.C.A. 36-2-311(12).

Alleged father petition to establish parentage after death was denied as no evidence of paternity was available.

– Humphrey v. Gammage, 2003 WL 21077741(Tenn.Ct.App.)

Death of Another

If Someone Else Dies

• • • Get as much information about the decedent and estate as possible. With a name, date of death and location, contact the local Register of Wills to determine if anything has been filed. Call the probate office or family of the deceased to verify the obligor's amount of inheritance and the date the estate will be distributed.

If Someone Else Dies

• • • Contact the obligor for a voluntary assignment. If the obligor refuses and is not in compliance with the support order, file a Petition for Contempt and obtain the assignment in court. File the lien in probate court, if necessary. The judgment acts as a lien against the inheritance.

If Someone Else Dies

• If you find out about the inheritance after the fact, have the court order the NCP to pay it over for child support arrears • If nothing else, it is proof of contempt for failure to pay

Planning Ahead

• • Ordering life insurance?

- T.C.A. 36-5-101(g)

- Hankins v. Hankins, 920 S.W.2d 433

Contract to provide support • Establishing a trust • Determine Social Security benefits • Determine if there is a will and if the child is included

Questions

Contact Information

Rose M. Bynum, Program Specialist

Phone: 215-861-4033 Fax: 215-861-4090 Email: [email protected]

Contact Information Kelly Peiper Principal Consultant, PSI

100 Army Post Road Des Moines, IA 515-943-0567 [email protected]

Contact Information Magistrate W. Scott Rosenberg

Juvenile Court of Davidson County, Tennessee 100 Woodland St., Nashville, Tennessee 37213 615-862-8038 [email protected]