Millions of children in the United States today are the beneficiaries of child support agreements. Many of those agreements are silent about whether the payor’s obligation would continue if the payor died with the agreement still partially unperformed. The states vary wildly in their approach to this situation: some terminate the obligation (as at common law), others preserve it; some presumptively terminate it, giving courts the option to revive it; others presumptively preserve it, but give courts broad discretion to modify or terminate it. Some states have enacted statutes addressing this; others rely on judicial decisions. The uncertainty and insecurity this creates cannot be justified. Children who are the beneficiaries of judicially-approved child support agreements in any state should be treated as top-priority creditors of the estate of a solvent obligor parent.

This Essay breaks new ground by proposing an elective share approach to preserving and satisfying prospective child support obligations at death. Under the proposed statute, the unpaid child support obligation is reduced to its present value and paid to the custodial parent before any other claim, whether the decedent is testate or intestate. The amount should be reduced (abated) only if necessary to satisfy other claims of the same type (claims of other supported children). The supported child’s claim should be funded in the same way as familiar spousal elective shares: by first applying any probate or non-probate transfers to the supported child, and only then turning to other estate assets. This approach is the best way to balance the supported child’s claim, the testamentary freedom of a testate decedent, and the shares of other intestate heirs. An elective share approach is familiar, easy to implement, and reflects an appropriate limit on testamentary freedom.