I am the primary caretaker of a minor child. I have a court order establishing child support payments. The father has terminal illness. He doesn't have life insurance, but has several real estate properties, a retirement account and other assets (cars, investments).
When he passes, do the child support payments continue?
I read L.W.K. v. E.R.C., 432 Mass. 438 (2000) case and the verdict was that: "A legally enforceable obligation to pay child support, like other financial obligations of the testator, takes precedence over testamentary dispositions and must be satisfied prior to any distribution of assets under the will.”
Does it mean that i can file a claim in the probate court to have the child support paid out of the father's estate until the child turns 18 or 23, depending on circumstances?
Yes, you can enforce child support against his estate. College education costs may not be recoverable, however.
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Was there a divorce separation agreement involved? If so what does it say about what happens upon the death of the paying parent? Have your divorce attorney review same if applicable.
If there are arrears there is a creditors claim, but the children could well be the sole heirs if he was intestate and he did not remarry, in which event they would be tenants in common of the real estate unless the real estate needs to be sold to pay debts . Meet with a probate attorney ASAP to go over your facts.
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