In the vast majority of circumstances, when a party paying child support and/or spousal support dies, those payments end with the payor’s death. Thus, if you are receiving support, it is quite legitimate to consider what might happen if the payor dies before the term of support would otherwise naturally end. This may be especially important to consider where your children have special financial needs, or if you agreed to receive a greater amount of spousal or child support in lieu of other money or property. Alternatively, if you are paying child support and the other parent passes away, such that you become your children’s primary custodian, your expenses could increase dramatically. Parties are free to agree that support will continue to be paid from a deceased payor’s estate, but that agreement is meaningless if the payor dies without assets from which the estate can actually pay. Fortunately, Virginia law provides a “plan B” to protect parties in those catastrophic circumstances.
It has long been the law of Virginia that the courts can require either parent to maintain a policy of insurance on their own life and to designate a child or children of the parties as beneficiary of some or all of the proceeds of such a policy. It is irrelevant which parent is the custodian of the children and who is paying the other child support.
So long as the parties have a duty to support a child, the court can require either to keep a policy in place. This makes perfect sense, since in the overwhelming majority of circumstances, if the primary custodian passes away, the non-custodial parent will then have custody of the children. The courts cannot require a parent to obtain a new policy of insurance that does not already exist at the time, but the parents themselves can agree to do so in a written agreement.
Several years ago, Virginia law was amended to extend similar authority in cases involving spousal support. The courts can – but are not required to – order a party paying spousal support to keep in place an existing policy of life insurance and to assign some or all of the proceeds to the recipient spouse. The courts must consider a number of factors, including the ages and health of each spouse, the amount and duration of the spousal support award, the cost of the insurance policy, and the ability of each spouse to pay the insurance premiums. The courts can also allocate the cost of the insurance policy between the parties, meaning that both may have to pay some share of the cost, or either could be required to pay the entire cost. Additionally, outside of court, the parties are free to agree to their own terms for maintaining life insurance.
Virginia law offers opportunities to literally ensure your receipt of child and spousal support, both in court and outside of court. You should be certain to discuss this contingency with your lawyer if either form of support is or may be an issue in your divorce or other family law matter. We have several family law attorneys who are ready and able to assist you with your questions or legal needs. Please give us a call at 703-251-5400 or contact AKronfeld@surovellfirm.com or click on the “contact” option on our website and submit your information.
Posted in: Family Law