What happens to child support if non-custodial parent dies?

Question Details:

I am a single mom with an 18 year-old daughter who still lives with me. We live in New York State. My ex-husband is quite ill and currently on life-support. He may not survive. What will happen with respect to child support? He is re-married and I am wondering if there are any obligations on his part? Will she get his social security benefits or do they go to his wife? To my knowledge, he has no will.

Asked on 2/3/2010 under: Divorce, Marriage, Alimony New York More Legal Topics ▼All States ▼

Alex Roshuk Answered 3 years ago This attorney is licensed in New York View Attorney Profile

I am assuming that there is no settlement agreement that controls the issue of the death of the non-custodial parent regarding child support, i.e. he was required to obtain insurance. Under New York law, if your ex-husband does not have a will his current spouse will get her marital share and then his children will get their share of the residual estate. The rule is found in EPTL sec. 4-1.1 and the rule is stated in subsection (a)(1):" A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation."

Regarding social security, generally children over the age of 18 do not receive social security or disability benefits, if he is on disability already the child should be receiving something. The relevant publication from the federal Social Security Administration is available online: http://www.ssa.gov/pubs/10024.html

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney Answered 3 years ago| Contributor

What you want to apply for are survivor's benefits under social security. Unmarried children who are younger than age 18 (or up to age 19 if they are attending elementary or secondary school full time) also can receive benefits. Your children can get benefits at any age if they were disabled before age 22 and remain disabled.

As for child support, what does your divorce agreement say? Was he obligated after 18? Did your divorce agreement provide for a life insurance policy to benefit you or your child should he pass? Also, if he dies without a will - "intestate" - then your daughter will share in his estate that does not pass jointly to his present wife upon his death.