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A Massachusetts Supreme Judicial Court ruling that allows a disinherited child’s court-ordered support payments to continue after her father’s death may be a boon to children’s rights or a blow to traditional estate planning, attorneys in the case say. The SJC largely upheld a probate judge’s decision to make the deceased man’s estate responsible for support payments until the child turns 18, and remanded the case, L.W.K. v. E.R.C., executrix, SJC-08216, to Middlesex Probate and Family Court. Four justices agreed on the decision, which was written by Chief Justice Margaret H. Marshall. A dissenting opinion was written by Justice Judith A. Cowin, who was joined by Justice Roderick L. Ireland in the dissent. Determining how the child’s support will be administered may be tantamount to “opening a Pandora’s box,” says the attorney for the estate. “The century-old statute that says you can disinherit someone has come into direct conflict with a state statute saying parents have to take care of their kids,” says Worcester attorney Burton Chandler of the law firm Seder & Chandler. Chandler wrote the will of a man who wanted his estate, valued at more than $800,000, to go to an adult daughter from his only marriage and to his sister. In the will, the man disinherited a young child for whom he had begun paying court-ordered child support in 1992. He died in 1994. THE BUCK STARTS HERE The case began a year after the man’s death, when the child’s original guardian ad litem filed a complaint to modify the child support order. His will had stated that the child, born out of wedlock but proven in a paternity action to be his daughter, was to be left only $1 and not to be considered his heir. She is now 10. The child’s counsel, Winchester attorney Margot A. Clower, says that the SJC decision is a “real triumph” for child support and could lead to clearer laws on how a minor is to be supported after a parent’s death. “When we go back to probate court, we’ll have to come up with some innovative approaches as to how the support will be handled,” says Clower, adding that in her research she has found only one state, Louisiana, that has a law prohibiting disinheritance as a way to terminate the child-support obligation after a parent’s death. “There are substantial changes in estate planning for wills and trusts that could result from this case,” says Clower. “The courts could order life insurance policies, for instance, be used to satisfy future support. “If you intend to omit a [minor] child from an estate, the courts may say you’ll have to make alternative, appropriate arrangements for their support,” she says. A MATTER OF OBLIGATION Writing for the majority, the chief justice cited cases dating back as long as 50 years to support “a conclusion that child support obligations survive the death of a parent.” Among them are Knowles v. Thompson, 166 Vt. 144, 418 (1997), from Vermont; a case decided by the Wyoming Supreme Court, Edelman v. Edelman, 65 Wyo. 271, 291-292 (1948); and a case in Virginia, Morris v. Henry, 193 Va. 631, 636 (1952). She added, “A legally enforceable obligation to pay child support, like other financial obligations of the testator, takes precedence … and must be satisfied prior to any distribution of assets under the will. A parent charged with an obligation to support his child cannot nullify that legal obligation by disinheriting his child pursuant to G.L.c. 191, section 20.” Disinheritance, the chief justice stated, may occur after support obligations are met. But while the SJC ruling makes the estate responsible for child-support payments, including the use of money from an inter vivos trust of the deceased parent, the court ruled against the probate court’s decision to set aside a lump sum for an educational trust fund for the child. Marshall suggested in the ruling that legislative action may be needed in Massachusetts “to clarify whether support for a minor child’s future educational needs may be ordered on the death of an obligor-parent.” COWIN’S DISSENT However, legislative policy also was at the heart of Cowin’s dissent. She disagreed with the majority view of “the Legislature’s intent that child support orders are presumed to survive an obligated father’s death unless otherwise provided by a court order. … In my view, the court reads too much into this statutory language.” Using alimony payments as an analogy they stop after an obligated party’s death, unless otherwise ordered. Cowin wrote “that such an order survives an obligated father’s death only if a judge has specifically provided for its survival.” Factored into the child support to be reconsidered by the probate court will be the Social Security survivors’ benefits that were granted to the child. The SJC agreed that they should offset any support from the estate. Until now, the court-ordered child support payments have been $100 a week. “But there are mandatory guidelines on child support geared to the income of the family, and we still don’t know if they’ll consider the income the whole estate or a percentage of the estate,” says Chandler. “This is a gray area.”

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