Security for Child Support

1. Generally

The right to be supported by the parents remains a right of the children until their emancipation. The pertinent statute provides that the death of a parent will not terminate an existing obligation to pay for either support or educational expenses:

Unless otherwise provided in the Act, or as agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child, or if the child has attained the age of 18, and is still attending high school, provisions for the support off the child are terminated upon the date that the child graduates from high school or the date the child attains the age of 19, whichever is earlier, but not by the death of a parent obligated to support or educate the child. An existing obligation to pay for support or educational expenses, or both, is not terminated by the death of a parent. When a parent obligated to pay support or educational expenses, or both, dies, the amount of support or educational expenses, or both, may be enforced, modified, revoked or commuted to a lump sum payment, as equity may require, and that determination may be provided for at the time of the dissolution of the marriage or thereafter. IMDMA §510(d).

Section 510(e) specifies:

The right to petition for support or educational expenses, or both, under Section 505 and 513 is not extinguished by the death of a parent. Upon a petition filed before or after a parent’s death, the court may award sums of money out of the decedent’s estate for the child’s support or educational expenses, or both, as equity may require. The time within which a claim may be filed against the estate of a decedent under Section 505 and 513 and subsection (d) and this subsection shall be governed by the provisions of the Probate Act of 1975, as a barrable, non-contingent claim.

Portions of the statute intended to protect children of divorced parents from being disinherited and thus losing the support to which they would otherwise be entitled have been upheld against constitutional challenge. In Kujawinski v. Kujawinski, 71 Ill.2d 563, 376 N.E.2d 1382, 17 Ill.Dec. 801 (1978), the father, who was in the most of a divorce, challenged several of the provisions of the newly passed IMDMA, including former §510(c) (now §510(d)), on constitutional grounds. Among other thins, he argued that since the obligation of a non-divorced parent to support a dependent child terminated at the parent’s death, he should be free to disinherit a dependent child. Noting the correctness of that statement, the court added that it did not mean that he could disinherit his family. 376 N.E.2d at 1390. The law protects against such a harsh result: the surviving parent could renounce the will of the deceased non-divorced parent and demand a statutory forced share of the deceased parent’s estate, which would then become available for the support of the dependent child who had been disinherited, giving the child of that marriage some indirect security against the possible loss of support due to disinheritance. (The surviving parent, of course, continues to be obligated to support the child.)

The court, noting that the dependent child of a divorced parent had no similar protection because a surviving divorced spouse has no statutory right of renunciation and is therefore not entitled to a forced share of a former spouse’s estate, pointed out that this inequity was what former §510(c) was passed to address:

A divorced parent is still free to disinherit a child of his divorced marriage, subject only to the limited obligation of support. In balance, section 510(c) mitigates rather than aggravates inequality [between divorced and non-divorced parents]. 376 N.E.2d at 1390.

The legislative purpose behind §510, to protect dependent children of divorced parents from loss of support through disinheritance, seeking to equalize the children of divorced and non-divorced homes, was thus a valid one and withstood the father’s constitutional challenge. Id.

Kujawinski, 376 NE.2d at 1390 – 1391, continued the discussion by noting that, while it is relatively rare that a parent in an intact family would disinherit his spouse or children, it was not so uncommon for a divorced parent to do so, feeling, for example, a greater allegiance to a later family or remoteness or even animosity toward the earlier family.

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