Estate Double-Dip to Benefit Child

by Colleen M. Healy, with assistance from paralegal Virginia Wilkinson.

The Illinois Appellate Court recently clarified that a “child’s award” in probate is distinct from a “child support” claim, holding the former is available in addition to the latter, for the child’s benefit when a parent dies. This rule applies even if there never was a divorce, the children were born out of wedlock, or the spouse predeceased the decedent. The Court held that these 2 claims are independent and not intertwined, which CC&M takes into account in representing its clients in probate matters as to claims that can be made against an estate.

More specifically, the Probate Act of 1975 (755 ILCS 5/15-2) states that when an Illinois resident dies without a surviving spouse, or if a minor/dependent child does not reside with the surviving spouse, each surviving minor child must be awarded a nondiscretionary minimum of $5,000 from the decedent’s estate. A court may award more than this if it determines that doing so is reasonable for the proper support of the children to sustain their current lifestyle for 9 months after the decedent’s death. The Appellate Court held that a further award may be made for past and future child support for children of a decedent under the Marriage Act (750 ILCS 5/510(d)) in addition to the statutory child’s award. In re Estate of Hudson, 385 Ill. App. 3d 1112, 896 N.E. 2d 1123 (2008).

The Hudson opinion holds that a “child’s award” and “child support” are not duplicative and that a court may use its discretion in determining the amount of these awards based upon available assets and other claims against the estate. Child’s award and child support claims each should be filed based on all living expenses, future educational expenses, and anticipated inflation to receive the maximum award possible.