SC Lawyer, Nov. 2004, #4. Family law issues when a spouse or parent dies.

• Author: By Gregory S. Forman

South Carolina Lawyer

2004.

SC Lawyer, Nov. 2004, #4.

Family law issues when a spouse or parent dies

South Carolina LawyerNovember 2004Family law issues when a spouse or parent diesBy Gregory S. FormanPractice 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 bylife 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. § 20-7-420 (17). However in Kennedy v. Kennedy, 270 S.C. 358, 361, 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, 381, 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, 404, 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...