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Family Law Issues When a Spouse or Parent Dies (September 2004)

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Published in South Carolina Lawyer, November 2004 and material for South Carolina Bar “Hot Tips” Lecture, September 2004

Practice family law long enough and eventually one will encounter a case in which a spouse or parent dies. What happens to a case, or to previously resolved custody and support issues,  when a party dies can be confusing.  Some issues raise clear answers; others do not. Below is a discussion of various scenarios and the relevant statutes and case law that affect each situation.

DIVORCE

Death during a divorce action renders the surviving party a widow or widower.  In Bayne v. Bass, 302 S.C. 208, 394 S.E.2d 726 (Ct. App. 1990), wife died during the period between the court’s issuing an oral order granting her a divorce and the signing of a decree.  Husband brought a motion to vacate the order based on wife’s death prior to its signing. The court vacated its order on this basis and the Court of Appeals affirmed noting that an order is not final until it is signed by the judge and filed with the court.

ALIMONY

Permanent periodic alimony, rehabilitative alimony, reimbursement alimony and separate maintenance all terminate as an operation of law when either party dies. S.C. Code Ann § 20-3-130 (B)(1, 3-5).  All these forms of support may be secured by life insurance to have the support last beyond the life of the payor spouse.  S.C. Code Ann § 20-3-130 (D).

Lump sum alimony terminates upon the death of the supported spouse but not upon the death of the payor spouse. S.C. Code Ann § 20-3-130 (B)(2).

CHILD SUPPORT

While the statute regarding alimony notes how death affects alimony, the statute regarding child support is silent on the issue of death. See S.C. Code Ann. § 63-3-530 (17). However in Kennedy v. Kennedy, 270 S.C. 358, 242 S.E.2d 417, 418 (1978) the Supreme Court held that child support obligations end upon the obligor’s death. See also, Harden, infra.

The appellate courts have interpreted S.C. Code Ann. 20-3-160 to allow the family court to require a supporting parent to carry life insurance in appropriate circumstances.  “This imposition must be based on justice, equity and compelling reasons for this necessity.” Ivey v. Ivey, 286 S.C. 315, 334 S.E.2d 123, 125 (Ct.App. 1985).  Failure to pay child support has been noted as a basis to require insurance. Id. How failure to pay child support is remedied by an insurance requirement is not explained.

In Hardin v. Hardin, 294 S.C. 402, 365 S.E.2d 34, 36 (Ct.App. 1987) the Court of Appeals held the lower court exceeded its jurisdiction in requiring a husband to carry life insurance to provide security for his alimony obligation because this obligation ended upon his death.  A few reported cases approve a life insurance requirement to cover potential college expenses for the children. Brown v. Brown, 270 S.C. 370, 242 S.E.2d 422 (1978); Fender v. Fender, 256 S.C. 399, 182 S.E.2d 755, 759 (1971).  No other reason for requiring life insurance on a child support obligation has ever been a dispositive issue on appeal.

Though it is hard to get the court to require a non custodial parent or supporting spouse to maintain life insurance, nothing prevents the custodial parent or supported spouse from maintaining insurance on the non custodial parent or supporting spouse’s life.   The courts are much more willing to require the non custodial parent or supporting spouse to cooperate in obtaining insurance than they are to require that party to maintain insurance on him or herself.

Given that custodial parents generally provide financial support for their children, the non custodial parent should consider having life insurance on the custodial parent or asking the court to require the custodial parent to carry life insurance.

CHILD CUSTODY

It is unsettled whether, after the death of one parent, custody automatically reverts to the other parent.  The following language in S.C. Code Ann. § 63-5-30 would suggest that custody automatically reverts to the surviving parent upon the other’s death:

The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and management of the estates of their minor children; and the mother and father have equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of the minor or any other matter affecting the minor.

Normally the superior custody rights of a fit parent mandate the child living with the other parent after the other parent’s death.  As noted in Kay v. Rowland, 285 S.C. 516, 331 S.E.2d 781, 782 (1985), “[o]nce the natural parent is deemed fit, the issue of custody is decided.”  However, when there has been a substantial period of time with the child living outside of the surviving parent’s house, the return is not necessarily automatic. Instead the court applies what are called the Moore factors after the case of Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989).  Those factors are:

1) The parent must prove that he is a fit parent, able to properly care for the child and provide a good home.
2) The amount of contact, in the form of visits, financial support or both, which the parent had with the child while it was in the care of a third party.
3) The circumstances under which temporary relinquishment occurred.
4) The degree of attachment between the child and the temporary custodian.

Id., 386 S.E.2d at 458.

While the Moore standard would only appear to apply when the child has been living with a third party, the courts have applied these standards when the child was living with the recently deceased parent. See e.g., Dodge v. Dodge, 332 S.C. 401, 505 S.E.2d 344 (Ct.App. 1998). The appellate courts have occasionally overturned the family courts for awarding custody to a third party over the surviving parent. Moore, supra; Harrison v. Ballington, 330 S.C. 298, 498 S.E.2d 680 (Ct.App.1998); Sanders v. Emery, 317 S.C. 230, 234, 452 S.E.2d 636, 638-39 (Ct.App.1994). They have also reversed the family court for awarding custody to a parent over a third party. Kramer v. Kramer, 323 S.C. 212, 473 S.E.2d 846, 849-50 (Ct.App. 1996).

Since it is very unclear how easily custody reverts to a surviving parent, a smart practitioner should anticipate this issue.  There are two good ways of reducing the risk that a non-custodial parent will face a third party custody fight if the other parent dies. One way is to have the custody order give the other parent “secondary custody.” The other is to make sure that the non-custodial parent has and exercises substantial visitation with the children.

EQUITABLE DISTRIBUTION

A claim for equitable distribution survives a party’s death. “[U]pon the institution or filing of marital litigation, the parties’ property acquired during the marriage becomes vested in an estate called marital property in which the parties have a vested interest subject to equitable distribution… [W]ith respect to the equitable division of marital property, marital litigation is not abated by the death of a spouse.” Hodge v. Hodge, 305 S.C. 521, 409 S.E.2d 436, 438 (Ct.App. 1991).

When a person dies intestate, the surviving spouse takes the whole share of the deceased spouse’s property if the deceased spouse leaves no surviving issue (defined as a person’s “lineal descendants whether natural or adoptive.” S.C. Code Ann. § 62-1-201(21)) and a half share if the deceased spouse has surviving issue. S.C. Code Ann § 62-2-102. Even if the deceased spouse leaves a will, the surviving spouse is generally entitled to an elective one-third share of the estate. S.C. Code Ann § 62-2-201.

If a person dies intestate without issue, or leaves a will leaving everything to the surviving spouse, pursuing equitable distribution does not make sense, as the surviving spouse will claim the deceased spouse’s distributed share.

Other persons who might frequently be entitled to some of the deceased spouse’s equitably distributed property are that spouse’s issue or his or her beneficiaries under a will. If the deceased spouse’s issue or beneficiaries are the children of the surviving spouse it may not make sense to pursue an equitable distribution award that would transfer assets from the surviving spouse to the parties’ children, especially if those children are minors.  However, if there are substantial assets and the deceased spouse’s issue or beneficiaries are not children of the surviving spouse, pursuing equitable distribution may be worthwhile.

Someone other than the surviving spouse needs to make the decision whether to pursue equitable distribution on behalf of the deceased spouse’s estate or whether to drop the claim for equitable distribution.  This will require a substitution of parties.

“If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.” Rule 25(a)(1),SCRCP.

The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided by Rule 4 for the service of summons. If substitution is not made within a reasonable time, the action may be dismissed as to the deceased party. Counsel of record for such deceased party shall give notice to all other parties of the death of such party as soon as practicable after obtaining such knowledge and of the name and address of the proper parties who should be substituted.

Id.

Generally the person who will substitute for the deceased spouse on the equitable distribution claim is the executor of the decedent’s estate.  Rule 25, SCRCP makes it incumbent upon the attorney for the deceased spouse to find a substitute party, as failure to do so may result in the equitable distribution action being dismissed. This leaves open a potential malpractice claim if the estate later decides the equitable distribution claim was worth pursuing.

The proper and safe procedure for an attorney representing a deceased spouse is to obtain a substitution of parties and then allow the substituted party to decide whether to pursue equitable distribution.

CONCLUSION

A parent or spouse’s death can have profound effects on the other parent or spouse’s rights, both during the litigation process and after a final order is issued.  Sometimes the effect of an unexpected death cannot be mitigated: the surviving spouse will never obtain a divorce but will become a widow or widower. Other effects can be mitigated against with some certainty: purchasing adequate life insurance provides complete security for the support of the surviving children or ex-spouse. In contrast, custody issues may be dependant upon how well the existing final order protects the surviving parent’s rights but may also depend upon how well the surviving parent exercised those rights after the order was issued.

While a family law practitioner cannot protect against every eventuality stemming from the other party’s death, proper planning and anticipation can protect one’s client from the unexpected ramifications of that death.