The parental obligation to support children until they are emancipated is well-established.  Parties to a divorce frequently negotiate and enter into a property settlement agreement which is subsequently incorporated into a judgment of divorce.  When children are involved, the terms of the property settlement agreement will address child support obligations and how those obligations will be secured.  Typically, the parent who is obligated to provide support is required to obtain life insurance in order to secure future child support payments in the event of his or her death before the minor children are emancipated.  But what happens when the property settlement agreement and judgment of divorce are silent on this issue?

An existing child support order does not automatically expire upon the death of the obligated parent as long as the estate’s assets are able to meet the obligation.  Fall & Romanowski, New Jersey Family Law, Relationships Involving Children, §34:1-1 (Gann 2015).  Further, a court possesses equitable authority under the New Jersey Parentage Act, N.J.S.A. 9-17:38, et seq., and N.J.S.A. 2A:34-23, (Alimony, maintenance.), to enter a fair and reasonable child support order after the death of a parent which is enforceable against his or her estate.  When considering such an order, the court will look to both probate and non-probate assets in the estate.  For example, policies of life insurance, which are not part of the probate estate since they pass according to beneficiary designation, may be considered as available to satisfy the child support obligations of the deceased parent. See DeCeglia v. Estate of Colletti, 265 N.J.Super. 128, 137 (App. Div. 1993)(holding that the statutory exemption of life insurance proceeds from creditor’s claims does not shield such proceeds from child support claim); Kiken v. Kiken, 149 N.J. 441, 453 (1997)(noting that nothing in N.J.S.A. 2A:34-23(a) precludes a court from entering a child support order after the death of a parent based on the factors enumerated therein).  Moreover, the proceeds of a life insurance policy owned by a decedent at the time of his death may be considered in evaluating whether the decedent’s estate consists of sufficient assets with which to pay child support, and may be used to satisfy such an obligation, even where the designated beneficiary was someone other than the decedent’s child or his estate.  See  DeCeglia v. Estate of Colletti, 265 N.J.Super. 128, 140. See also, Raynor v. Raynor, 319 N.J.Super. 591, 614 (App. Div. 1999).

Divorcing parents should address how future child support obligations will be secured.  Most often this will be accomplished by requiring the obligated parent to obtain life insurance for the benefit of minor children.  In the absence of explicit provisions in a property settlement agreement or final judgment of divorce, the surviving parent may seek to enforce or establish a fair and reasonable child support order after the death of the other parent enforceable against his or her estate.