Child Support Arrearage Creates Claim on Decedent’s Estate

Dear Mr. Premack: My son had several children and later divorced. He always failed to pay his child support as they grew up. He remarried. He had cars and trucks in his sole name, and he and his wife jointly owned a home. He died earlier this month. Can his adult children come in and demand any of the estate since there was no will? – WCF

The fact that he failed to pay his child support while the children were minors is reprehensible. Texas law states that the inheritance is subject to the payment of court-ordered child support payments that are delinquent on the date of death.

Since “there was no will”, Texas law examines the nature of his family to determine who has the right to inherit. The estate of a person who has children from a prior marriage is split between those children and the new spouse.

All of his half of the community property goes to his children. Since his delinquent child support can only be collected from his assets, and the children already get his entire share of the community property, the delinquency has no effect on the wife’s ability to retain her existing half interest in the community property.

If the house is community property, his children own one-half of it. But they cannot legally force the sale of the house so long as his new wife desires to maintain it as her homestead.

On the other hand, by law his separate property passes ⅔ to the children and ⅓ to the new wife. If the autos and trucks are his separate property, his support arrearage would be paid first from the value of those autos and trucks, and any balance would be split ⅔ to the children and ⅓ to the new wife.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, April 9, 2010

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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) is *Certified as an Elder Law Attorney ( CELA ) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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