By Julie C. Caskey

RELATIVELY NEW LAW HAS TEXAS PARENTS PAYING CHILD SUPPORT EVEN AFTER THEIR OWN DEATH

In 2007, during its 80th legislative session, the Texas legislature made some important amendments to Texas child support law that many Texans remain unaware of even today.  Texas child support obligors can now be required to make child support payments even after they have died! 

PRIOR LAW

Prior to these legislative amendments, Texas law terminated a child support order upon the death of the party ordered to pay child support (the obligor).  When the obligor died, so did his or her duty to pay child support.  The obligor’s estate was liable for arrearages and associated interest, but not a prospective supoprt obligation.  Because the financial needs of families and children do not cease upon the death of the obligor parent, the Texas Legislature drafted legislation to address the harm resulting from the termination of child support obligations upon the death of the obligor.   

CURRENT LAW

The new legislation amended several sections of the Texas Family Code.  The most significant–and perhaps the most controversial–change is in section 154.006(a), regarding the death of a child support obligor.  The legislation deleted the text which provided that a child support order terminates on the death of a parent ordered to pay child support. 

A new section, Section 154.015, addresses the acceleration of unpaid child support and states that “[i]f  the child support obligor dies before the child support obligation terminates, the remaining unpaid balance of the child suport obligation becomes payable on the date the obligor dies.” As an example, this means that if an obligor parent is paying $500 per month in child support and dies on the child’s tenth birthday, there is still eight years of child support payments due to that child.  $500 times 12 months a year times eight years =  $48,000 in child support.  Under Texas’ new law, the obligor’s estate now owes $48,000 to the obligee parent. 

This is true even if the obligor had a will leaving his or her entire estate to someone else.  The new law makes child support a priority of the estate, meaning it will be paid first, before any distributions under a will are made.

WHAT’S THE BIG DEAL?

This may seem like a good law to some; after all, the legislature was merely trying to ensure Texas children continue to get support they require.  However, the law has some far reaching–and maybe unintended–consequences for Texas families.  Imagine this family: Husband and wife are married.  Husband has a daughter from a previous marriage and has been faithfully making child support payments.  Husband and wife also have a son together, for whom no court ordered child support exists because husband and wife are the parents of the child and are married to each other.  Further assume that son is a special-needs child, and to ensure he is well taken care of after husband’s death, husband leaves everything in his will for the benefit of his son.  Now, assume husband dies while daughter is 10 years old.  Eight years of child support have a priority claim against the estate.   Often, an obligor dies with an estate so small, the prospective child support payments swallow up the entire estate, leaving nothing left for distribution to the parties listed in the husband’s will.

With this new legislation, how can Texas parents be sure that all of their children will be taken care of in the event of their death?  As illustrated above, even leaving everything to your children in your will may result in them actually receiving very little or nothing at all.  Texas parents need to be aware of this new legislation and its unintended consequences.  Parents should speak with an attorney about their options in drafting their wills and other estate planning techniques that will ensure their children are well-taken care of.

Julie C. Caskey is an associate with the law firm of Garg & Associates, PC.  She is a published author on Texas family law and estate planning matters.  For a full discussion of the many unintended consequences of Texas’ new child support legislation, please see Ms. Caskey’s article here.