What happens when a parent who owes child support dies? To the chagrin of some and the delight of others, death does not absolve family law judgment debtors of their unpaid child support obligations.[1] While the death of a debtor parent abates a dissolution action, the court retains jurisdiction to enforce rights adjudicated prior to the death.[2]
This is crucial for children and custodial parents who have been given the protection of a family law judgment for an unpaid child support obligation and/or fees, only for the payor parent to pass away. Even with this protection, however, the question remains of how to enforce child support in California when the debtor is deceased. One would hope that the decedent’s successor-in-interest or personal representative would ensure compliance on the decedent’s behalf. This is often not the case, however, making court intervention necessary for child support enforcement.
While each case is unique, family law judgment creditors seeking child support enforcement after the debtor dies have several tools in their toolboxes. It is important to understand all possible avenues for relief, including in the family court, the probate court, and the civil court. A family law judgment creditor may in fact be forced to exhaust each possibility to satisfy the obligation of child support after the death of a parent.
This article provides a brief analysis of the tools available to family law judgment creditors seeking to enforce their rights after the death of a judgment debtor. But before examining these tools, it’s important for judgment creditors to familiarize themselves with the creditor’s claim process in the probate court, which is uniform across the board, whether one is seeking child support enforcement or another type of money judgment against a deceased debtor.
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What Is the Creditor’s Claim Process for Child Support Enforcement After the Death of a Parent?
First, the family law judgment creditor must heed the statute of limitations precluding the commencement of an action against a decedent more than one year after his death.[3] Filing a creditor’s claim against the decedent’s estate in the probate court is the only permissible method to toll this limitation period (unless the doctrine of equitable estoppel is deemed to apply),[4][5] to preserve the judgment creditor’s rights against the judgment debtor.
If no estate administration proceeding has been initiated, the judgment obligee may first have to file a petition for probate to open the estate in order to file a creditor’s claim. Then, even when a creditor’s claim is filed, the estate’s personal representative must accept service of the same. If no personal representative has been appointed, it may be incumbent on the judgment creditor to seek appointment as special administrator of the decedent’s estate with the (likely sole) power to receive creditor claims on the estate’s behalf. To that end, creditors are specifically contemplated in the list of those statutorily entitled to appointment as administrator of a decedent’s estate.
While the creditor’s claim process is a necessary first step, it is only the final step if the personal representative of the estate accepts and pays the creditor’s claim. If the claim is either rejected or ignored (and thereby deemed rejected),[6] the family law judgment creditor’s journey continues.
How to Obtain an Enforceable Judgment for Unpaid Child Support if One Does Not Yet Exist
Perhaps a parent with unpaid child support obligations passed away with a clear judgment specifying a concrete amount to be paid by a certain time by a surviving individual against whom the judgment can be enforced after the parent’s death. More likely, however, this is not the case. For example, a judgment for installment child support payments may not be immediately enforceable without a determination of arrears or a specific amount owed.
Additionally, a judgment against a decedent with unpaid child support obligations may not be immediately enforceable without a child support order making the judgment payable by a trustee or other successor-in-interest. Once the creditor’s rights have been secured in the probate court through the timely filing of a creditor’s claim, the two most likely forums for the creditor to obtain an enforceable, collectible child support judgment are the family court and the civil court.
Obtaining an Enforceable Child Support Judgment
Unsurprisingly, the family court is often the appropriate forum in which to seek an enforceable family law judgment for unpaid child support after the debtor parent dies. First, if the judgment debtor is a family law litigant who passes away before a final judgment is entered, the judgment creditor may still be able to obtain an enforceable judgment. Specifically, the family court retains jurisdiction to enter judgment on all issues already submitted to the court for a final decision before the death of a party to litigation.[7]
Further, after Judgment has been entered, the family law judgment creditor may be wise to file a Request for Order in the family court for orders determining child support arrears to distill the deceased debtor’s obligation to an identifiable and collectible sum and to confirm the decedent’s successor-in-interest’s responsibility for same, as well as the successor’s ongoing obligation to pay the child support that the decedent would have had to pay if he were still living.
Recovering Family Court Attorney Fees Under Family Code 2030 and Family Code 271
Attorney fees are recoverable in family court as well, either based on a disparity in the respective financial circumstances of the judgment creditor and the judgment debtor (or rather, his estate) under Family Code section 2030,[8] or as sanctions for the judgment debtor’s conduct in escalating litigation, obstructing settlement, and exacerbating attorney fees under Family Code section 271.[9] Attorney fee awards against non-spouses (e.g., successors-in-interest) are specifically contemplated under Family Code section 2030(d), which states: “Any order requiring a party who is not the spouse of another party to the proceeding to pay attorney’s fees or costs shall be limited to an amount reasonably necessary to maintain or defend the action on the issues relating to that party.”
Thus, the family court would be the appropriate arena in which to obtain a child support judgment if the matter was already adjudicated before the debtor’s death, to obtain a judgment for a collectible amount of child support arrears, and/or to obtain a judgment for attorney fees or sanctions.
Obtaining an Enforceable Civil Court Judgment for Unpaid Child Support
In addition, a family law judgment creditor might consider filing a complaint in the civil court against the deceased parent’s successor-in-interest for breach of an obligation to pay a child support judgment and/or unjust enrichment.[10] Even trust beneficiaries are partially civilly liable for the debtor’s obligation,[11] up to the value of the property distributed to them under the trust.[12] Relatedly, suit may be brought to enforce a creditor’s claim that was rejected by a trustee[13] or the personal representative of the debtor’s estate.[14] Prevailing party attorney fees are available in this forum as well, pursuant to Probate Code sections 19255(e) and 9354(c).
The civil court may therefore be a possible avenue by which to obtain an enforceable judgment against the debtor’s estate for a specific amount of unpaid child support, enforcement costs, damages, fees, costs of suit, and/or interest.[15]
Joining a Deceased Child Support Debtor’s Trust
The family law judgment creditor may encounter a scenario in which the decedent’s assets are held by his revocable trust and claimed to be off-limits by the trustee. But this argument cannot be used to preclude child support judgment enforcement, with courts having established that a family law judgment debtor’s revocable trust is responsible for satisfying the debtor’s child support obligation: “In the context of an existing child support order [Probate Code § 19001] is a clear statement of legislative intent that property put into a living trust (i.e., subject to the trustor’s power of revocation) must be available to satisfy a valid child support obligation, no matter what the trust’s terms of distribution” (In Re Marriage of Perry (1997) 58 Cal.App.4th 1104, 1109).
In fact, “the family law court could properly make a child support order payable from the whole of the trust property, not just the [portion] which was earmarked to go to [the child] eventually” (Id. at p. 1110).
In Re Marriage of Perry: Property Placed in Trust Is Not Immune From Family Law Judgment Creditors
In In Re Marriage of Perry, the obligor father died a few years after a child support order against him was issued. Upon the obligor’s death, the obligor’s trust unilaterally discontinued making the child support payments. Upon a Request for Order to determine arrearages, the court held that the obligor’s estate owed the unpaid child support from the death of the obligor until the time of the hearing. The court also held that the obligor’s trust is liable for the ongoing child support obligations of the deceased parent. “The rule cannot be in California that if you make a will your property will be subject to an existing child support order but if you put everything in a living trust your property will be immune” (In re Marriage of Perry, supra, 58 Cal.App.4th at 1109).
The family law judgment creditor should therefore join the debtor’s trustee as a party to the action in which enforcement is sought. Accordingly, the court can issue a clear judgment not only specifying the precise amount owed (and confirming an ongoing child support obligation where appropriate), but also ordering that the trust be responsible for the same. To the extent that distributions of trust property have been made to beneficiaries and insufficient trust property remains to pay the judgment, then the beneficiaries should be ordered to pay their pro-rata share of said amount, not to exceed the total amount distributed to each said beneficiary from the trust, as discussed above.
The discussion above regarding family law attorney fees payable to post-death creditors also applies to trusts. In re Marriage of Wendt & Pullen (2021) 63 Cal.App.5th 647, 651, illustrates the application of Family Code section 2030 to a fee award against a trust, finding that a trust’s assets were accessible to pay attorney fees that an opposing party incurred in a family law child support proceeding successfully defending against the trust’s challenge to the court’s jurisdiction over it.
Forcing the Sale of Estate or Trust Property (If Necessary) to Satisfy a Child Support Order
Thus, family law judgments for unpaid child support must be distilled into a clear, enforceable form in order to be collectible. Even then, however, the judgment debtor’s trustee, executor, administrator, or other personal representative may still refuse to comply with their court-ordered obligations. In that case, it may be time to seek the forced sale of trust or estate property to secure judgment compliance. This may be done with an Application for Order for Sale[16] brought under the Code of Civil Procedure, Part 2, Title 9 i.e., the California Enforcement of Judgments Law.
In bringing an Application for Order for Sale to enforce a child support order against a deceased debtor, it is important to follow all statutory requirements of the California Enforcement of Judgments Law, and the creditor would be wise to refer to the entire Title.
Obtaining an Order for the Sale of Real Property Under the California Enforcement of Judgments Law
Certain steps must be taken to obtain an order for the sale of real property, including trust and estate property. First, the family law judgment creditor must record an Abstract of Support Judgment against the debtor’s properties. Before bringing her application, the creditor should prepare by sending loan payoff requests to mortgage holders[17] to determine the existence and amount of child support obligations, get the properties appraised, obtain a litigation guarantee,[18] and determine the existence of homestead or other possible exemptions which might make a sale undesirable or even impossible.[19]
If a homestead exemption exists, the court must determine the amount of the exemption and the fair market value of the dwelling, and then make an order for sale of the dwelling subject to the exemption, unless it determines that the sale would not be likely to produce a bid sufficient to satisfy any part of the amount due on the child support judgment.[20]
Once the creditor is ready to bring her application, she should instruct the Sheriff to levy and sell the property to satisfy some or all of the judgment. The Sheriff will then serve a Notice of Levy on the debtor, which will give the creditor 20 days to file her application.[21]
Each step in this process is also an opportunity to seek voluntary compliance from the debtor. It would behoove the family law judgment debtor to voluntarily market and sell the property if there is no other way to satisfy the judgment, as a Sheriff’s sale is almost certain to result in a below-market price sale.
Moreover, the family law judgment creditor is often able to bid on the property herself, using a credit bid up to the amount due on the judgment. In such a case, the family law judgment creditor may end up owning trust or estate property – often purchased for a fraction of its market value – and still have a remaining child support judgment against the debtor. This scenario is yet another illustration of the fact that death cannot protect a family law judgment debtor from his legal obligations, and that the judgment creditor is rarely without recourse to collect on her judgment.
Key Takeaway: Successors Are Not Shielded From Deceased Judgment Debtor’s Child Support Obligations
In summary, a family law judgment debtor’s death does not shield his successors from his child support obligations. Once the family law judgment creditor preserves her rights in the probate court by timely filing a creditor’s claim, she must then ensure that she has an enforceable judgment, likely seeking relief in the family court and/or the civil court.
Once the creditor has a judgment specifying the exact amount of unpaid child support or related items due in addition to any ongoing child support obligation, and she has identified the successor-in-interest against whom the deceased debtor’s obligation may be enforced, the creditor may then seek orders forcing the successor-in-interest to sell trust or estate property to satisfy the child support judgment.
As such, family law judgment debtors would be well-advised to comply with their child support obligations during their lifetimes, and to instruct their successors to comply thereafter.
Do you have questions about how to enforce child support in California after the debtor dies? We can help.
It can be frustrating if a parent dies and owes child support, but you are not without recourse. Whether you are dealing with unpaid child support or another type of family law judgment, Keystone can help you achieve the outcome you want in your case.
As probate attorneys, we are familiar with the inner workings of deceased debtors’ estates and trusts, which enables us to help family law judgment creditors obtain the amount they’re owed. We also are equipped to help personal representatives, trustees and beneficiaries protect assets from the reach of creditors with invalid claims. Call us today to request a free consultation.
Footnotes
[1] “In California the rule is that the obligation of a father to support his minor child which is fixed by divorce decree or property settlement agreement, does not cease upon the father’s death, but survives as a charge against his estate.” Taylor v. George (1949) 34 Cal.2d 552, 556. See also Fam. C. § 3901(a)(1) (“The duty of support imposed by Section 3900 continues as to an unmarried child who has attained 18 years of age, is a full-time high school student, unless excused pursuant to paragraph (2), and who is not self-supporting, until the time the child completes the 12th grade or attains 19 years of age, whichever occurs first.”); and In re Marriage of Bertrand (1995) 3 Cal.App.4th 437 (“Although husband has since died, his support obligation survives his death and is a charge against his estate”). This does not hold true for spousal support judgments, however. See Fam. C. § 4337 (“Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party”).
[2] In re Marriage of Lisi (1995) 39 Cal.App.4th 1573; In re Marriage of Allen (1992) 8 Cal.App.4th 1225; Kinsler v. Superior Court (1981) 121 Cal.App.3d 808; In re Marriage of Williams (1980) 101 Cal.App.3d 507; In re Marriage of Shayman (1973) 35 Cal.App.3d 648; Bevelle v. Bank of America (1947) 80 Cal.App.2d 333; McClenny v. Superior Court (1964) 62 Cal.2d 140; Newhall v. Melone (1962) 199 Cal.App.2d 121.
[3] “If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.” Code Civ. Proc. § 366.2(a). “
[4] Battuello v. Battuello (1998) 64 Cal.App.4th 842.
[5] Battuello v. Battuello (1998) 64 Cal.App.4th 842.
[6] Prob. C. § 19254.
[7] In re Marriage of Mallory (1997) 55 Cal.App.4th 1165; In re Marriage of Shayman (1973) 35 Cal.App.3d 648; Code Civ. Proc. § 377.20(a) (“Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person’s death, but survives subject to the applicable limitations period”); and Code Civ. Proc. § 377.21 (“A pending action or proceeding does not abate by the death of a party if the cause of action survives”).
[8] Family Code section 2030 provides, in part: “In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. . . When a request for attorney’s fees and costs is made, the court shall make findings on whether an award of attorney’s fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs. . .” (emphasis added).
[9] Family Code section 271(a) sets forth, in part: “Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction.”
[10] “Upon the death of a settlor, the property of the deceased settlor that was subject to the power of revocation at the time of the settlor’s death is subject to the claims of creditors of the deceased settlor’s probate estate and to the expenses of administration of the probate estate to the extent that the deceased settlor’s probate estate is inadequate to satisfy those claims and expenses.” Prob. C. § 19001(a). “Except as provided in Section 19303, after the death of the settlor all money judgments against the deceased settlor on a claim against the deceased settlor or against the trustee on a claim against the decedent or the trust estate are payable in the course of administration and are not enforceable against property in the trust estate of the deceased settlor under the Enforcement of Judgments Law.” Prob. C. § 19300. Pursuant to Probate Code section 19255, enforcement of a creditor claim against a trust is by lawsuit, reference or arbitration.
[11] Prob. C. § 19400.
[12] Prob. C. § 19402(b).
[13] Prob. C. § 19255.
[14] Prob. C. § 9350, et. seq.
[15] See Code Civ. Proc. § 685.020(b) (“Unless the judgment otherwise provides, if a money judgment is payable in installments, interest commences to accrue as to each installment on the date the installment becomes due.”).
[16] Code Civ. Proc. § 704.760.
[17] Civil Code section 2943 defines the procedures to pay off secured loans.
[18] Litigation guarantees are title insurance policies issued in actions affecting land, which determine the existence of liens, homestead exemptions, and taxes owing, offering plaintiffs protection that they have named all proper parties to ensure that a judgment received is binding.
[19] Code Civ. Proc. §§ 703.010 – 706.
[20] Code. Civ. Proc. § 704.780(b).
[21] Code Civ. Proc. § 704.750.
