Child maintenance is a regular, reliable financial support that helps towards a child’s everyday living costs. It is usually paid by the parent who does not have the main day-to-day care of the child to the parent who does have the main day-to-day care.
If they live in Scotland, a child aged 12 to 19 and in full-time, non-advanced education or training can apply for child maintenance.
It is payable as a minimum until a child is aged 16 but will also be payable between the ages of 16 and 19 where the child is still in full-time education (more than 12 hours per week, up to and including A level).
Whilst it is understandably assumed and hoped that both parents will live to see their child into adulthood, where the formal obligation to pay child maintenance will also stop being a factor; it can of course happen where one or both parents can die before this happens; and specifically in the context of separated parents, the potential death of a parent who pays child support can cause a huge issue and burden financially on the parent who was receiving it.
Suddenly, the financial support of the surviving parent can be drastically reduced; in an unexpected and unforeseen way and result in them not being able to provide for their child in the same way.
This may result in them making a formal claim against the supporting parent's estate for financial provision to be made, where this was not already covered by the supporting parent in their lifetime.
The Supporting parent could have covered this potential scenario in one of a number of different ways:
Life Insurance
They could have set up life insurance which would then pay a lump sum to the receiving parent in consideration of the amount that would have been paid in child maintenance or an amount to be held on trust until the child reaches 16, or leaves full time secondary education.
In an ideal situation, the financial order upon divorce would provide that the paying parent take out life insurance to cover much or all of their financial support for children until the children leave full time education so it is important to be clear on whether this was done and if no financial order has yet been prepared, could the issue of child maintenance be dealt with within a Financial order now.
Trust (lifetime or within a Will)
A supporting parent with numerous assets may have established a trust to provide continuing support for their children. Although the proceeds of this trust will be managed by a trustee (as above) that trustee will have a duty to disburse the trust proceeds in support of the children as directed by the terms of the trust. A trust can either be set up in lifetime with clear direction as to when it is based, to whom and in what circumstances; alternatively only in the event of the supporting parent's death and in accordance with their Will; where the children are still either under the age of 16 or have not yet left full time secondary education.
Child Maintenance Clause within their Will
As above, it is possible to include a clause within your Will which in effect provides for financial provision to be made to your child of an amount equal to what the supporting parent would have paid in child maintenance assuming they had survived and that child attained the age of 16 or later if in full time secondary education. A trust may be created and as to what type will be determined by the drafting of this clause and the age of the child at the time of the supporting parent's death.
Where none of these options are explored however, and a supporting parent dies whilst still being legally responsible for paying child maintenance then the receiving parent can, on behalf of their child make a claim against the supporting parent's estate:
Making a financial claim against a deceased person’s estate: Claims under the Inheritance (Provision for Family and Dependents) Act 1975.
The 1975 Act provides that in certain circumstances, the court has the power to make an order for ‘reasonable financial provision’ (which can include provision for accommodation) if no such provision out of the estate of the deceased has been made. This can be expensive and time consuming for all involved and often any costs in bringing the claim can reduce the amount that is then available in the deceased's person's estate. It is also distressing and can cause upset and understandably financially impact on the child themselves where their one surviving parent is then needing to make the claim, deal with the administrative and logistic burden of that whilst also managing family grief and distress.
In summary, where there is a child maintenance element in your family structure, always obtain legal advice as to what your obligations may be, even on death and explore the different options as to how to deal with those potential obligations which may include one of the above and in particular the including of a child maintenance clause and or trust within your Will.