Spousal Support for Payee Beyond Supporting Party's Death

David K. Yamamoto, CFLS

Editor’s Note:  David Yamamoto is a Certified Family Law Specialist practicing in Torrance, California.  He is also a member of the Family Law Executive Committee for the Los Angeles County Bar Association and is the current editor of the Family Law E-News.

Per Family Code Section 4337, the court’s jurisdiction to award spousal support will end upon death of either party or the remarriage of the supported party, unless agreed to in writing otherwise.  In certain cases you may want to negotiate a support order that extends beyond the death of the supporting spouse.  For example, you may have a case of a long term marriage with a wealthy supporting spouse that is elderly or ill and you are representing the much younger supported spouse that does not have the ability to support themselves once spousal support ends upon the supporting party’s death. You may also have a case in which your client will be the recipient of a non-modifiable order as to amount and duration.  In these situations you may want to negotiate a support order that allows support to go beyond the supporting party’s death.

For example let’s say the order simply states: R shall pay P as and for spousal support the sum of $4000 per month, payable on the 1st day of each month commencing July 1, 2001, and ending only upon P’s death, or remarriage.   The order is silent on support ending upon supporting party’s death.  Supporting party dies and the estate refuses to continue paying the supported ex-spouse.

Is this order a waiver of FC 4337? 

The answer is yes.  In Marriage of Kircher (2010) 189 Cal.App.4th 1105, 117 Cal.Rptr.3d 254, a similar situation arose and the trial court held there was a valid waiver of FC 4337.  The ruling was upheld by the Appellate Court.  The order was enforced against the supporting party’s estate and his surviving new wife was ordered to continue to pay ex-wife spousal support.  A similar result occurred in Lucas v. Elliot (1992) 3 Cal. App.4th 888, 4 Cal.Rptr. 2d 746.  In Lucas the retention of jurisdiction was again simply stated that support would continue until supported party’s “death or remarriage.”   Specific language waiving FC 4337 is not needed, however, more specific language such as support ending on the supported spouse’s death or remarriage “only” and that the order survives supporting party’s death and is secured by supporting party’s estate will help the supported party avoid the litigation what occurred in Kircher and Lucas.

Beware of the one year statute of limitation:

In order to enforce the waiver of FC 4337 you must be aware of the one year statute of limitations contained in CCP Section 366.3(a).  A creditor’s claim needs to be filed in Probate Court within a year of the supporting party’s death.  Once the creditor’s claim is rejected a complaint needs to be filed in civil court, not family court, against the trustee or the executor of the supporting party’s estate. In one appellate court case a supported spouse lost out on their claim because they waited until 19 months after the supporting party’s death.  See Marriage of Embree (2004) 125 Cal.App. 487, 22 Cal.Rptr.3d 782.  In Embree the wife argued that there is no time limit to enforce the spousal support order because FC 4502 does not require a renewal of spousal support orders. The appellate court found FC 4502 does not address the procedural requirements for reaching assets of a judgment debtor after death.

Can spousal support be secured by the supporting party’s estate by court order? 

The answer is yes. Pursuant to FC 4339 the court may order the supporting spouse to provide reasonable security for spousal support payments ordered to be paid in the future. For example a pledge of securities, or lien on real property. The security won’t be enforced if unreasonable.  In Marriage of Johnson (1982) 134 Cal.App. 3d 148 the husband had a gargantuan drinking problem.  The trial court ordered a lien on his entire share of community property to secure spousal support and child support.  Held: Reversed as a “conservatorship without a hearing” A more limited type of lien would have been permitted.

Further, the court may order life insurance or annuity on the life of paying spouse or order paying spouse to provide a trust for benefit of supported spouse to secure future spousal support.  FC 4360.

When negotiating spousal support or trying the case in court beware of the above when you are representing the supported spouse.  When the occasion arises you can provide your client with security for their future.


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