New York law provides that a parent can be disqualified for receiving death benefits of their minor child for two reasons: for failing to support the child, or for abandoning the child. EPTL §4-1.4. In In re Lee, probate litigation was initiated requiring the Surrogate’s Court of New York County to determine whether the father of a deceased child should be disqualified based on failure to pay child support.
In March 2016, the child died at age 14 while at boarding school. At the time her parents were divorced. The mother was the custodial parent. The father was ordered to pay child support. The mother petitioned for and was awarded letters of administration for her daughter’s estate. The father did not appear at the hearing and did not oppose the mother being appointed administrator.
Even though the father had been ordered to pay child support, he had not done so consistently. In fact, in the last 5 years of the child’s life, the father had only paid $3,955 in child support and was $74,294.49 in arrears.
In 2008 the parties brought the issue of child support to Family Court. At the time, the father’s arrearage was $23,650. The father had requested a downward modification and both parties had the opportunity to present evidence and testify. However, the Family Court had determined that the father had willfully refused to pay child support and disallowed any downward modification of his support obligations. The father did not appeal the decision and did not make any additional effort to modify his child support obligation.
Surrogate’s Court decision
Since most minor children do not have significant estates, typically, the issue of disqualification becomes relevant when there is a financial award related to the child’s death such as when the death was caused by negligence. Note that in this case the amount of the child’s estate was not mentioned, nor was a negligence award mentioned.
New York law allows for a proceeding to disqualify a parent who failed to support the child from receiving a distributive share of the child’s estate or any money that would be available as a result of the child’s death. A parent would be eligible to be disqualified for failing to support a child only if they were unwilling to support, not if they were unable to support.
The mother filed a motion for summary determination that the decedent’s father was disqualified as a distributee and beneficiary for failure to support. In support of her motion, the mother presented evidence that the father was not unable, but was unwilling to pay child support. Even if it was true that the father did not have the ability to pay the amount set by the court, he did not make an effort to pay an amount that he was able to pay.
In opposition to the motion, the father made three arguments:
- The amount that he was ordered to pay in child support was inaccurate because it did not take into consideration that fact that he had no income during his incarceration in Afghanistan
- The mother sought to alienate him from the child
- The Family Court was biased against him based on his sexual orientation
The Surrogate’s Court did not find the father’s arguments persuasive. First, he did not follow through with his efforts to modify the amount he had to pay for child support. Thus, the issue of the father’s ability to pay was disposed of by Family Court. Second, he never raised the issues of alienation or bias in Family Court or on appeal.
Note that where there is hearing under EPTL §4-1.4. to disqualify a parent based on failure to support, generally the Surrogate’s Court will not re-visit arguments related to whether the amount of child support ordered was appropriate when the parent had a full and fair opportunity to litigate those issues in Family Court.