Nothing is certain but death……...1 Death of a Family Member Impact Upon a IV-D Case MCAA Seminar June 12, 2015 Sandra M. Torgerson, Child Support Enforcement Division Head, Dakota

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Death of a Family Member

Impact Upon a IV-D Case

MCAA Seminar June 12, 2015

Sandra M. Torgerson, Child Support Enforcement Division Head,

Dakota County Attorney’s Office (West St. Paul, MN)

Overview

• Obtaining verification of death.

• Deceased child issues.

• Deceased obligee issues.

• Deceased alleged father issues.

• Deceased obligor issues.

• Probate claims procedure and alternatives.

• Near death issues.

Verification Of Death

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Verification Of Death

• What constitutes sufficient verification? – Minn. R. Civ. P. 11.

• Representation to court that information presented is provided after reasonable inquiry and that the factual statements that have evidentiary support.

– Program integrity. • PRISM coding on your case will transfer to all

other cases involving same person.

Verification Of Death

• State vital records departments.

–See CDC National Center for Health Statistics for direct access to individual state and territory information:

–http://www.cdc.gov/nchs/w2w.htm

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Verification Of Death, cont.

• Social Security “Death Master File” – https://www.ssdmf.com/FolderID/1/SessionID/%7B4

ECB97D9-510D-46F2-BA3B-0B1A570663C7%7D/PageVars/Library/InfoManage/Guide.htm

– Search may be available for free through some commercial sites, e.g. Ancestry.com:

• http://search.ancestry.com/search/db.aspx?dbid=3693

Verification Of Death, cont.

• Obituary online or in local papers. – Google search

– Obituaries101. http://www.big101.com/OBITUARIES101.htm.

– Legacy.com

http://www.legacy.com/ns/

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Verification Of Death, cont. • Historical society or related

organizations.

– Example: Minnesota Historical Society indexes death certificates from 1908 to 2001. http://people.mnhs.org/dci/search.cfm?CFID=2576583&CFTOKEN=31174498

– Minnesota Birth Records Index provides access to birth certificates from 1900-1934.

– People Finder: http://www.mnhs.org/people/

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Tips From The Minnesota Historical Society

• Certificates are issued and registered in the county/state in which the death occurred. This may be different from the county/state of residence. – Example: Minneapolis (Hennepin county)

resident dies in car crash in Warroad (Roseau county). Records will be in Roseau County where the death occurred, not Hennepin County.

– Use search engine selection for “all counties” recommended, if applicable.

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Minnesota Historical Society Tips, Cont.

• Creating a death certificate is not an exact science.

– Information often from family members who are under stress.

– Data entry mistakes in forms and databases.

– Consider all possible errors and spelling variations.

• Example, Johnson, Johnsen or Jonson).

Death of Child

Death Of Child: Impact On Existing Order

Duration of support statute:

Minn. Stat. § 518A.39, subd. 5.

• If support order for only one child, ongoing support obligation terminates.

– Becomes an “arrears only” case.

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Death Of Child: Impact On Existing Order, Cont.

• If support order for more than one child: – Per child order: amount for the deceased child

terminates.

– Multiple children order: • obligation continues in full amount until remaining

child(ren) emancipate, unless modified by subsequent order; or

• Specific method provided by order.

Death Of Child: Impact On Existing Order, Cont.

• Duration of support statutes can differ from state to state.

• Essentials for Child Support Attorneys

– http://www.acf.hhs.gov/programs/css/resource/essentials-for-attorneys-in-child-support-enforcement-3rd-edition Exhibit 9-2, Age of Majority for Child Support Purposes/Duration of Child Support Obligations.

– OCSE material is dated, but a starting point for research.

• State at a Glance - Intergovernmental Reference Guide (IRG)

– http://www.acf.hhs.gov/programs/css/irg-state-map

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Death Of Child: Impact When No Order Established

• Minn. Stat. § 256.87 permits action to obtain past support/reimbursement for period prior to service of action.

• Note: some jurisdictions do not permit establishment of support for periods prior to service of action.

– If UIFSA action needed to obtain jurisdiction, no action may be possible.

Questions Regarding Verification Of Death And/or Death Of Child Issues

Death of Obligee: Impact Upon Existing Child

Support Order and Arrears

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Does the Ongoing Obligation Survive Obligee’s Death?

• Upon the death of the custodial parent, the right to custody “automatically” reverts to the surviving parent.

• The order “dies” with the obligee. – Rodgers v. Knauff (in re N.A.K.), 649 n.W.2d 166 (Minn.

2002). – As an adjudication of custodial rights a divorce decree is

conditioned upon the continued life of both parents, and when the custodial parent dies, the decree eo instante ceases to be operative and the custodial rights of the surviving parent are reinstated as if no decree of divorce had ever been entered.

–

See also

• Petition of Hohmann, 255 Minn. 165, 168-169 (Minn. 1959)

– As an adjudication of custodial rights a divorce decree is conditioned upon the continued life of both parents, and when the custodial parent dies, the decree eo instante ceases to be operative and the custodial rights of the surviving parent are reinstated as if no decree of divorce had ever been entered.

• Wilson v. Barnet, 275 Minn. 32,35 (Minn. 1966)

– A parent who has not been found unfit, but has been denied custody only because of a divorce decree, automatically resumes the right to custody when the custodial parent's rights are terminated.

• State ex rel. Gravelle v. Rensch, 230 Minn. 160, 164 (Minn. 1950):

– The great weight of authority is that where custody of a minor child is granted to one parent by a divorce decree, and such parent dies, the right of custody automatically inures to the surviving parent, absent a showing that he is unfit. We recently so held in Kienlen v. Kienlen, 227 Minn. 137, 34 N.W. (2d) 351.”

Does the Ongoing Obligation Survive Obligee’s Death, cont.

• Similar cases from other states: – Newman v. Newman, 667 So. 2d 1362, 1365 (Ala. Civ. App.

1995) citing W. W. Allen, annotation, Right to Custody of Child As Affected by Death of Custodian Appointed by Divorce Decree, 39 A.L.R. 2d 258, 260 (1955). Brown v. Brown, 218 Ark. 624, 238 S.W.2d 482 (1951); Webb v. Webb, 546 So. 2d 1062 (Fla. Dist. Ct. App. 1989), review denied, 553 So. 2d 1168 (Fla. 1989); Whiteside v. Dickerson, 240 Ga. 54, 239 S.E.2d 377 (1977); Judd v. Van horn, 195 Va. 988, 81 S.E.2d 432 (1954).

• But - in some states the obligation survives. – In re Marriage of Gregory (1991) 230 cal.App.3d 112; In re Marriage of

McCann (1994) 27 Cal.App.4th 102.

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Impact On Collection Of Current Support If Obligation Does Not

Survive. • If the order “died” with the obligee, is

redirection of that order’s support obligation to a caretaker appropriate? (Order “nullified.”)

• A new action to establish support for the authorized caretaker may be needed.

Death of Obligee: Addressing

Arrears • Assigned arrears may be collected by agency for reimbursement of public assistance expended.

• Arrears owed to obligee are property of the obligee’s estate.

– Issues:

Does IV-D services based on application of obligee terminate upon obligee’s death?

Does a personal representative need to complete new IV-D application for collection of arrears?

Can IV-D case be closed?

IV-D Case Closure Criteria

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Case Closure Criteria 45 CFR § 303.11

Criteria for case closure includes:

• “In a non-IV-A case … the agency is unable to contact the recipient of services within 60 days despite mailing at least one letter to the last known address.”

– Is this applicable when recipient of services dies?

• “In a non-IV-A case … the agency documents the service recipient’s noncooperation and an action by the recipient is essential for the next step.”

– Is this applicable when recipient of services dies?

Case Closure Criteria 45 CFR § 303.11, cont. • “There is no longer a current support order and arrearages are

under $500 or unenforceable under State law.”

– If support order “died” with obligee, is this criteria applicable?

• “The identity of the biological father is unknown and cannot be identified after diligent efforts, including at least one interview by the IV-D agency with the recipient of services.”

– If recipient of services deceased, cannot interview. What other “diligent efforts” to identify the biological dad are available?

Death Of Obligee – Sample Procedure

Dakota county flow chart and letters to obligor and obligee/obligee’s estate.

– Under Dakota county’s interpretation, application for IV-D services terminates with death of applicant.

– Need application for IV-D services from new custodian to collect ongoing support.

– Need application from personal representative of obligee’s estate to collect unassigned arrears owed to obligee’s estate.

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SAMPLE PROCESS UPON DEATH OF OBLIGEE

Learn of obligee’s death.

Immediately put hold on distribution.

Verify death.

Stop current charging and collection of unassigned arrears.

Send letters to obligor and obligee/obligee’s estate.

• Close IV-D case for collection of non-public assistance support and unassigned

arrears. Document in agency file case criteria “unable to contact obligee.”

• Mail Notice of Intent to Close Case.

• Continue collection of assigned arrears only, if any.

• Apply any money on hold to public assistance arrears.

• Return any money on hold received on/after date of death to obligor after 60

days if no assigned arrears exist and no application from personal

representative to collect unassigned arrears.

DATE

OBLIGOR’S NAME AND ADDRESS

RE: CHILD SUPPORT CASE#

Dear Obligor:

The Dakota County Child Support Agency has been providing child support

collection services upon the application of Obligee. Due to the death of Obligee,

the services for collection of any support owed to her/him will terminate. The arrears

owed to the State of Minnesota will continue to be collected from you by Dakota

County. For the time period through FIRST OF MONTH FOLLOWING DEATH

MONTH, arrears owed are as follows:

$ X,XXX to Estate of Obligee

$ X,XXX to State of Minnesota

If you have any questions, please contact me.

Sincerely,

Dakota County sample letter to obligor

Dakota County sample letter to obligee/obligee’s estate

DATE

The Estate of Obligee

Obligee ADDRESS

RE: CHILD SUPPORT CASE #

To the Estate of Obligee:

The Dakota County Child Support Agency has been providing child support collection

services upon the application of Obligee. Due to the death of Obligee, services for the

collection of any support owed to her/him have terminated. For the time period

through (first of the month following date of death), Obligor owed the following

arrears to Obligee:

$ X,XXX.XX

The Dakota County Child Support Agency will not be collecting on these arrears as the

child support collection services case is closed.

If you have any questions, please call me.

Sincerely,

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Questions Regarding Death Of Obligee

Issues

Death of Alleged Father

Overview • Do IV-D services continue?

• Effect of alleged father’s death upon pending paternity action.

• Options for determining parentage if alleged father dies before paternity action commenced.

• Statute of limitations issues.

• Effect of obligor’s death upon existing order.

• Collection and probate.

• Near death issues.

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Can IV-D Services Continue?

IV-D Case Closure Criteria

Case Closure Criteria 45 CFR § 303.11

Criteria for case closure includes:

• Noncustodial parent or putative father is deceased and no further action, including a levy against the estate, can be taken.

– Issue: what further action can be taken, if any?

Death Of Alleged Father Effect Upon Pending

Paternity Action

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Death Of Alleged Father Effect Upon Pending Paternity

Action • Does a pending action survive the death of alleged father? – Minnesota: paternity action “dies” with alleged

father. Voss v. Duerscherl, 425 N.W.2d 828, 831 (Minn. 1988):

• Court held that the pending paternity action does not survive against the father and siblings of the alleged father. A paternity action can only be taken against a personal representative.

• Statutes and/or case law in other states may differ.

Death Of Alleged Father: Effect Upon Pending Paternity

Action, Cont.

• Minn. Stat. § 573.01 Survival of

causes.

–Most causes of action survive only to the personal representatives of the decedent.

Options to Determine Parentage If Alleged

Father Dies Before Paternity Action

Commenced

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Commencement Of Paternity Action Against Personal Estate

Minnesota Statute § 257.62

• Commence action against personal representative.

• Court can require the decedent's parents and/or siblings to submit to genetic testing. – Court may refuse to order tests if the tests

present a danger to the health of a relative that outweighs the child's interest.

• Unless the relative consents, results can only be used to establish child’s right to public assistance, such as Social Security and veterans' benefits.

ALTERNATIVES TO PATERNITY ACTION

OBTAIN GENETIC TEST RESULTS INDICATING PARENTAGE

• Need genetic sample. – Alleged father’s DNA sample may be available

from: • Paternity action involving another child

• Medical Examiner/Coroner

• Hospital

• Deceased father, including possible exhumation

– Deceased father’s family remembers: • First degree relatives of father

• “Sibling testing” of father’s other children.

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Benefits Of Determining Parentage

• The benefits of determining parentage may encourage cooperation with genetic testing.

– Social Security and other financial benefits for the child.

– Assist with placement of child if custodial parent deceased.

– Name of father on birth certificate.

– Life insurance proceeds and inheritance rights.

– Grandparent visitation.

Statute Of Limitations Issues

Statute Of Limitations And IV-D Service Issues

• Statutes of limitations may bar court action.

– Minnesota Parentage Act: statute of limitations for paternity action requires action to be commenced by time child is 19. Minn.

Stat. § 257.58.

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Paternity Act Vs. Probate Code • Paternity may be established under probate

rather than paternity statutes. – Probate Code: Minnesota Statute § 524.2-114

permits, but does not require, parentage in a probate proceeding be determined under the Parentage Act.

• Parentage Act and Probate Code serve different purposes: – Parentage Act: establish the legal parent/child

relationship. Child support is the major concern.

– Probate Code: determine transfer of property.

– Different limitation periods for filing claims due to different purposes of each statute.

• In re the Estate of Palmer, 658 N.W.2d 197, 200 (Minn. 2003) and In Re the Estate of Jotham, 722 N.W.2d 447 (Minn. 2006)

Paternity Act Vs. Probate Code Statutes Of Limitations Example Case

In re the Estate of Martignacco,

689 N.W. 2d 262, 267–268 (Minn. St. App.2004)

• “Child” was 34 before he found out decedent was his biological father.

– “At the time of his death, it was generally believed that decedent was survived only by his three brothers, who expected to inherit decedent's estate. These assumptions changed when respondent attended decedent's funeral.”

In re the Estate of Martignacco, 689 N.W. 2d 262, 267 – 268 (Minn. St. App. 2004), cont.

• Applying the Parentage Act limitations period would make it impossible for "undiscovered," nonmarital children to establish paternity.

– Minn. Stat. § 257.58: action by age 19.

• Goal of Minn. Stat. § 524.2-114 (probate

code) is to remove distinctions between marital and nonmarital children claims.

• Genetic tests can establish parentage under the Probate Code.

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Issue:

• Is establishment of parentage for an “adult-child” a IV-D function?

• No. Title 45 CFR 302.31 requires states establish paternity of a child.

– Definitions: 301.01:

– Qualified child means a child who is a minor or who, while a minor, was determined to be disabled under title II or XVI of the act, and for whom a support order is in effect.

EffEct Of ObligOr’s DEath Upon Existing Child

Support Order

Issues

• Effect of obligor’s death upon existing child support order.

• Collection issues:

– How to locate assets.

– What steps are needed to obtain collection from estate when a probate action exists?

– What are the options if no probate action exists?

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Child Support On Death Of Obligor

Minn. Stat. § 518A.39, subd. 4

• Unless agreed in writing or provided in the order, support is not terminated by the death of the obligor.

– In re Estate of McCarthy, No. A08-1581, 2009 WL 2926310, (Minn. Ct. App. Sept. 15, 2009)

• The amount of support may be modified, revoked, or commuted to a lump sum payment, to the extent just and appropriate in the circumstances.

Maintenance (Alimony) Or Spousal Support Upon Death Of Obligor

Minn. Stat. § 518A.39, subd. 3

• Child support and maintenance/spousal support treated differently.

• Unless agreed in writing or expressly provided in the decree, the maintenance obligation terminates upon the death of either party.

Possible Resolutions Upon Death Of Obligor For Collection

Of Arrears • Close IV-D case and stop collection; or

• Seek collection from estate. – Note: Not all property is property of the estate from

which collection may be made. E.g. joint tenancy

– Judgments obtained but not entered: Minn. Stat. § 548.07 Judgment after death of party. Judgment may be entered after the death of a party upon a verdict, or decision upon an

issue of fact, rendered in the party's lifetime. Such judgment shall not be a lien on real property of the decedent, but shall be payable, in the course of administration of the decedent's estate, as if allowed by the district court against the estate.

See Tikalsky v. Tikalsky, 166 Minn. 468, 471, 208 N.W. 180, 181 (1926) and Risk ex rel. Miller v. Stark, 787 N.W.2d 690 (Minn. Ct. App. 2010)

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Obligor – Location Of Assets Subject To Probate

• Ask obligee.

• FIDM information.

• Property records.

• Motor vehicle and drivers license information.

• Inventory of assets in probate action.

• Google, Facebook, and other online searches.

Probate

What Is Probate? What Is A PR? • Probate: Legal process of settling the estate of a

deceased person and transferring property to the heirs/beneficiaries.

– Property is gathered and inventoried.

– Debts and taxes paid.

– Remainder divided among the heirs/beneficiaries.

– Probate begins with the filing of an application with the probate court and ends when all debts are paid and assets distributed.

• Personal representative: The person responsible for administering the estate.

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Uniform Probate Code • Uniform Probate Code can be found at:

– https://www.law.cornell.edu/uniform/probate

– Some states have adopted the Uniform Probate Code in its entirety, some states adopted with significant modifications. Some states have adopted portions of the Uniform Probate code.

– Minnesota adopted portions of the 1990 Revision of Article II-- §§ 524.1-101 to 524.8-103

• https://www.revisor.leg.state.mn.us/pubs/

Uniform Probate Code as enacted in Minnesota

•Article I. Minn. Stat. § 524.1-101 through 524.1-404

– General provisions, definitions, and probate jurisdiction of the court.

•Article II. Minn. Stat. § 524.2-101 through 524.2-1010.

– Rules regarding intestate succession (no will) and rules regarding wills.

• Article III. Minn. Stat. § 524.3-101 through 524.3-1204

– Provisions for probate of wills and administration of estates.

Uniform Probate Code as enacted in Minnesota, Cont.

• Article IV. Minn. Stat. § 524.4-101 through 524.4-401

– Provisions regarding foreign personal representatives and ancillary administration of estates.

• Article V. Minn. Stat. § 524.5-101 through 524.5-502.

– Protection of persons under disability and their property. “Uniform Guardianship and Protective Proceedings Act.”

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Uniform Probate Code as enacted in Minnesota, Cont.

•Article VI. Minn. Stat. § 524.6-201 through 524.6-311.

– Nonprobate transfers on death. Provisions relating to multi-party accounts; the Uniform Transfer on Death (TOD) and Security Registration Acts.

• Article VII. Not adopted. – Article regards trust administration, has not

been adopted in Minnesota. Trust administration in Minnesota is governed by Minnesota Statutes Chapter 501B.

•Article VIII. Minn. Stat. § 524.8-101 through 524.8-103.

– Relates to the effective date of the Code.

Demand For Notice • “Demand for Notice” filed with court administration

will result in obtaining notice of all orders and filings regarding a decedent’s estate, if an estate proceeding is commenced. – File in county of obligor’s residence at time of death (may also wish to

file in any county obligor owned real estate). Minn. Stat. § 524.3-204.

• If you are aware of probate proceeding (e.g. obtained published notice) you may not need to file a “Demand for Notice” unless you want notice of all filings in the action. – See Minnesota Demand for Notice form and instructions at Minnesota

Supreme Court Website. http://www.courts.state.mn.us

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524.3-204 DEMAND FOR NOTICE OF ORDER OR FILING CONCERNING DECEDENT'S ESTATE.

• Any person desiring notice of any order or filing pertaining to a decedent's estate in which the person has a financial or property interest, may file a demand for notice with the court at any time after the death of the decedent stating the name of the decedent, the nature of the interest in the estate, and the demandant's address or that of the demandant's attorney. The court administrator shall mail a copy of the demand to the personal representative if one has been appointed. After filing of a demand, no personal representative or other person shall apply to the court for an order or filing to which the demand relates unless demandant or the demandant's attorney is given notice thereof at least 14 days before the date of such order or filing, except that this requirement shall not apply to any order entered or petition filed in any formal proceeding. Such notice shall be given by delivery of a copy thereof to the person being notified or by mailing a copy thereof by certified, registered or ordinary first class mail addressed to the person at the post office address given in the demand or at the person's office or place of residence, if known. The court for good cause shown may provide for a different method or time of giving such notice and proof thereof shall be made on or before the making or acceptance of such order or filing and filed in the proceeding. The validity of an order which is issued or filing which is accepted without compliance with this requirement shall not be affected by the error, but the petitioner receiving the order or the person making the filing may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand under this provision may be waived in writing by the demandant and shall cease upon the termination of the demandant's interest in the estate.

Filing A Probate Claim

• The Notice and Order for Hearing constitutes the notice to creditors to file claims.

• Notice may be in the form of published notice in the newspaper.

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FILING A PROBATE CLAIM, Cont.

• Be familiar with claim statutes. – See also: Statement of Claim instructions and forms

available on Minnesota Supreme Court Website: http://www.courts.state.mn.us

• Meet time deadlines. – Claims must be filed within four months of the date of

the notice. Minn. Stat. § 524.3-803.

– If no notice, you may be able to file a late claim.

• Notify all interested persons.

• Check probate court file.

524.3-805 Classification Of Claims (a) If the applicable assets of the estate are insufficient to pay all claims in full,

the personal representative shall make payment in the following order: (1) costs and expenses of administration; (2) reasonable funeral expenses; (3) debts and taxes with preference under federal law; (4) reasonable and necessary medical, hospital, or nursing home expenses of the last illness of the decedent, including compensation of persons attending the decedent, a claim filed under section 256B.15 for recovery of expenditures for alternative care for nonmedical assistance recipients under section 256B.0913, and including a claim filed pursuant to section 256B.15; (5) reasonable and necessary medical, hospital, and nursing home expenses for the care of the decedent during the year immediately preceding death; (6) debts with preference under other laws of this state, and state taxes; (7) all other claims.

Probate Claim Procedure

• Priority of claims differ from state to state.

–Include an explanation of the debt.

–Attach payment records.

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Probate Claim Procedure, Cont.

• Timely filed claims are automatically allowed unless partially or wholly disallowed by the personal representative within 2 months after the last date to file claims. Minn. Stat. § 524.3-806(a).

• A proceeding for the allowance of a disallowed claim must be filed within 2 months after the mailing of the Notice of Disallowance or the claim is automatically barred. Minn. Stat. § 524.3-806(a).

Probate Claim Procedure, Cont. Payment of Claim • Release of Claim may be prepared by personal

representative, the estate’s attorney or IV-D attorney’s office, depending on local practice.

– Original receipt filed with probate court.

– When the claim is paid in whole or in part, a recommended practice is to make sure the check clears before signing any Release of Claim.

– See Receipt of Payment and Release of Claim sample form, attached at end of PowerPoint .

What If No Probate Action Exists?

Should the IV-D Agency initiate a probate action?

Considerations:

• Is probate action within the scope of IV-D services that can be provided?

• Probate action involves considerable time/money to do legal action, locate heirs and assets.

• Social Security and other benefits may be available for the child(ren).

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FIDM and Property of Estate

• 524.3-812 EXECUTION AND LEVIES PROHIBITED. No execution may issue upon nor may any levy be made against any property of the estate under any judgment against a decedent or a personal representative, but this section shall not be construed to prevent the enforcement of mortgages, pledges or liens upon real or personal property in an appropriate proceeding.

DEath Of ObligOr’s Relative

Death Of Obligor’s Relative If an obligor is a potential heir of an estate

and may inherit:

– Do not file a claim in the estate. Claim

is for the collection of debts owed by

the deceased relative, not the obligor.

– Find out when distribution will be

made. Check probate court file.

– Take appropriate action if possible.

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Death of Obligor’s Relative, Cont.

• Possible actions:

– Obtain sequestration order and serve the

personal representative copy of the order.

– May be able to serve income withholding

order upon the personal representative.

• If estate is out of state, discuss with your IV-D

attorney.

Near Death Issues

• Coma • Life Support

QUESTIONS

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Dakota County Sample Form: Receipt of Payment and Release of Claim form

The End

Thank you for listening