Is My Ex-Spouse’s Estate Liable for Child Support If He Dies?

 Posted on March 27, 2025 in Divorce

Perhaps you and your spouse divorced a year or so ago, and he is paying child support for your four young children. He has parenting time with the children and has been very good about paying child support and keeping the children on his health insurance plan through his employer. An unexpected accident ends in his death. While you may be devastated that your children have lost their other parent, you are also apprehensive about how you will support your children on your own, absent child support and health insurance.

Is the parent’s estate responsible for child support? The death of a spouse who pays spousal support usually ends that support, absent an agreement to the contrary. Child support is usually considered a different matter, as there is a strong public policy protecting minor children. If you need assistance determining whether your ex-spouse’s estate will be responsible for continuing to pay child support, speak to a knowledgeable Wheaton, IL family law attorney.  

How Do You Ensure Child Support Continues After the Death of Your Ex-Spouse?

The situation will likely be much more difficult if you do not have a good relationship with your ex-spouse’s family or if he is remarried and has more children. You will need to file a creditor’s claim against your ex-spouse’s estate, and there are time constraints that are non-negotiable, so it will need to be done as quickly as possible. In addition to your divorce attorney, you may also need a probate attorney to take care of this issue. A firm that has both family law attorneys and estate attorneys, like Mirabella, Kincaid, Frederick & Mirabella, LLC, can make the process much less complicated.

Be aware that if your ex-spouse dies with little in the way of an estate, there may be nothing you can do as far as child support is concerned unless he has a life insurance policy that designates his children as beneficiaries. While some states require ex-spouses to carry life insurance policies for their children, Illinois law does not explicitly state this, yet many courts require parents to carry life insurance to secure child support obligations. The court is more likely to do so when the parent’s age, health, or profession poses a clear risk.  

If only the paying parent is required to have life insurance, the cost may be allocated between the two parents, or only the parent who pays child support could be required to cover the entire cost. Cooperative co-parents might anticipate such a situation and make explicit provisions for their children in the event of one parent’s death. These provisions could be memorialized in the divorce decree and are legal and binding once approved by the court.

Illinois statute 750 ILCS 5/510(d) specifically addresses child support following the death of the paying parent and also mentions educational expenses. The statute says that when a parent obligated to pay support or educational expenses – or both – dies, these expenses may be "enforced, modified, revoked, or commuted to a lump sum payment" from the estate of the deceased parent.    

A mentally or physically disabled adult child may also be awarded child support from the deceased parent’s estate to help support the adult child after the age of 18. The other parent may also petition the probate court for financial assistance from the deceased parent’s estate to help a child with college expenses. The child may only petition the probate court on his or her own if both parents are deceased.

Contact a DuPage County, IL Child Support Lawyer

If you have questions about child support or any other family law matter, it is important to speak to a highly skilled Wheaton, IL child support attorney from Mirabella, Kincaid, Frederick & Mirabella, LLC. MKFM Law can help you figure out what you need to do to ensure your children are taken care of. We serve our family law clients at our offices in Kane County, DuPage County, and DeKalb County. Call 630-665-7300 to schedule your initial attorney meeting.