If back child support is due when a parent dies, the unpaid child support would be a debt of the parent’s estate, like any other debt. Importantly, if the estate has insufficient assets to pay all debts, child support is normally paid before most other debts.
File a Creditor Claim
The living parent needs to file a creditor claim against the estate of the parent that dies, like any other creditor claim. Even though a parent might have a judgment for the unpaid support, the creditor claim must still be filed. If the estate objects to the creditor claim, litigation against the estate will be required.
Are Unpaid Child Support Claims Paid Before Other Debts of the Estate?
Yes. In Florida, creditor claims are placed into one of eight categories. Unpaid child support is in category six, which means it gets paid before most debts. 733.707 Order of payment of expenses and obligations.—
(1) The personal representative shall pay the expenses of the administration and obligations of the decedent’s estate in the following order:
(a) Class 1.—Costs, expenses of administration, and compensation of personal representatives and their attorneys fees and attorneys fees awarded under s. 733.106(3).
(b) Class 2.—Reasonable funeral, interment, and grave marker expenses, whether paid by a guardian, the personal representative, or any other person, not to exceed the aggregate of $6,000.
(c) Class 3.—Debts and taxes with preference under federal law, claims pursuant to ss. 409.9101 and 414.28, and claims in favor of the state for unpaid court costs, fees, or fines.
(d) Class 4.—Reasonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent, including compensation of persons attending the decedent.
(e) Class 5.—Family allowance.
(f) Class 6.—Arrearage from court-ordered child support.
(g) Class 7.—Debts acquired after death by the continuation of the decedent’s business, in accordance with s. 733.612(22), but only to the extent of the assets of that business.
(h) Class 8.—All other claims, including those founded on judgments or decrees rendered against the decedent during the decedent’s lifetime, and any excess over the sums allowed in paragraphs (b) and (d).
(2) After paying any preceding class, if the estate is insufficient to pay all of the next succeeding class, the creditors of the latter class shall be paid ratably in proportion to their respective claims.
In Florida, unpaid child support is treated as a “class 6” claim, with priority over most general types of claims against the estate of the parent that dies.
The claims that have priority over unpaid child support would include the cost of administering the estate, taxes, and funeral expenses. An unpaid credit card, for example, would be a “class 8” claim, which would only be paid after all of the claims in classes 1 through 7 are paid.
Can Back Child Support be Taken from Life Insurance?
That depends. If the life insurance proceeds are paid to the estate of the parent that dies, then yes, unpaid child support, as well as all other claims, would be paid from the life insurance proceeds. Some divorce agreements and court orders will require that the parent owing the child support would need to have insurance to cover all potential child support payment in the future, in which case the life insurance proceeds might be available to cover past as well as future child support payment.
Can Back Child Support be Taken from a Trust?
Possibly. If the trust was a revocable trust that the delinquent parent set up, most states make the assets of a revocable trust responsible for all debts of the deceased.
If the delinquent parent was the beneficiary of an irrevocable trust (that may have been set up and funded by that parent’s parents, for example) it is possible under some state laws to break through an irrevocable trust for the purpose of claiming unpaid child support – but state laws will vary widely in this regard.
What if the Deceased Parent Transferred All of His or Her Assets to a Friend Before Death?
All states recognize a cause of action known as a “fraudulent conveyance” action, which is a lawsuit against the person receiving a gift of assets from the person who had significant unpaid debts at the time of the transfer.
Some states recognize fraudulent conveyance actions where the deceased person is the one making the gifts to the friend. Therefore, if a friend of the deceased was the recipient of gifts shortly before death where the deceased had unpaid child support, it might be possible to sue the person receiving the gifts for the unpaid child support. An example of the use of a fraudulent conveyance lawsuit regarding an estate in Florida is Valdivia v. Valdivia, 593 So.2d 1190 (3rd DCA 1992).
What if the Court-ordered child Support is from a State other than Florida?
The Florida probate process recognizes any sort of debt, including judgments from states outside of Florida. If you are owed unpaid child support ordered by a state other than Florida, and the delinquent parent died as a Florida resident, a creditor claim must still be filed in the Florida probate. If there is litigation over the unpaid child support, that litigation can be in either Florida or the state that issued the child support order.
