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Wills and Child Maintenance: What You Should Know

· 21 min

Note: The following scenario is fictional and used for illustration.

Michael had been paying £450 monthly in child maintenance for his two daughters since his divorce three years ago. When he updated his will last month, he wrote: "All child maintenance obligations shall cease upon my death, and my estate shall not be liable for any claims related to maintenance."

His solicitor explained the uncomfortable truth: that clause was meaningless. Child maintenance dies with the parent, yes—but so could his daughters' financial security. If Michael left nothing to his children in his will, they could challenge his estate under the Inheritance (Provision for Family and Dependants) Act 1975. And if he owed maintenance arrears when he died? Those would become a debt his estate had to pay before anyone else inherited a penny.

Over 1 million children in the UK are covered by Child Maintenance Service arrangements, yet many separated parents don't understand how child maintenance and inheritance intersect—or why their will matters more after divorce than it did during marriage.

This guide explains what happens to child maintenance when a parent dies, how arrears affect your estate, and how to protect your children financially whether you're paying or receiving maintenance.

Table of Contents

Child Maintenance vs Inheritance: Key Differences

Child maintenance and inheritance serve completely different purposes, operate under different legal frameworks, and continue (or stop) at different times.

Child maintenance is an ongoing financial obligation calculated based on the paying parent's income. Under UK law, child maintenance continues until a child turns 16 or 20 if they're in approved education or training. It's meant to cover day-to-day living costs: food, clothing, school expenses, and housing contributions.

Inheritance is a one-time transfer of assets when someone dies. There's no legal formula. You can leave everything to your children, nothing to your children, or split your estate however you choose. Your will controls this—assuming it's valid and no one successfully challenges it.

Sarah learned this distinction the hard way. Her ex-husband paid £600 monthly in child maintenance for their son, but his will left everything to his new wife. When he died suddenly at 48, the maintenance payments stopped immediately. Sarah's son received nothing from his father's £400,000 estate. She assumed the court would automatically provide for her child. It didn't.

The key differences:

  • Maintenance stops at death. Inheritance begins at death.
  • Maintenance is legally mandated during the parent's life. Inheritance is (mostly) at the parent's discretion.
  • Maintenance covers living costs. Inheritance provides capital.
  • Maintenance follows a formula. Inheritance follows your will (or intestacy rules).
  • Maintenance cannot be controlled by your will. Inheritance is entirely controlled by your will.

But here's where it gets complicated: even though maintenance stops when you die, your children's financial needs don't. If you leave them nothing—or not enough—they can challenge your estate.

What Happens to Child Maintenance When a Parent Dies?

Child maintenance payments cease immediately upon the death of the paying parent. This isn't a choice or a court decision—it's automatic. The Child Maintenance Service closes the case, and no further payments are required from the estate.

This creates an immediate financial crisis for the parent with care. If Emma was receiving £500 monthly and relied on that income to cover her children's needs, that £500 disappears the day their father dies. The mortgage, school uniforms, childcare—none of those costs disappear with him.

The estate does not take over the maintenance obligation. Even if the deceased parent's estate is worth £2 million, the estate has zero legal duty to continue monthly payments to the children.

That said, there are three exceptions where the estate may pay money related to child support:

1. Outstanding arrears owed at death

If the parent owed £5,000 in arrears when they died, that £5,000 becomes a debt against the estate. The Child Maintenance Service or the parent with care can file a claim, and the estate must pay these arrears before distributing inheritance to beneficiaries.

2. Court-ordered provision for children

Children can apply under the Inheritance (Provision for Family and Dependants) Act 1975 if the will (or intestacy) fails to provide reasonable financial support. If successful, the court can order the estate to make lump sum payments or transfer property to the children.

3. Life insurance or trust provisions

If the deceased parent set up life insurance payable to the children or established a trust for their benefit, these funds can provide ongoing support. But this only happens if the parent planned for it.

James, 42, paid £850 monthly for his three children. When he was diagnosed with a terminal illness, he had six months to prepare. He took out a £250,000 life insurance policy, wrote it in trust for his children, and updated his will to leave them his share of the family home (worth £180,000). When he died, his children received immediate financial security—not because the law required it, but because James planned for it.

Without that planning, his children would have received nothing automatically.

How Child Maintenance Arrears Affect Your Estate

If you owe child maintenance arrears when you die, those arrears don't disappear. They become a debt of your estate, ranked alongside other debts like credit cards, personal loans, and utility bills.

Here's how it works:

When you die, your executor identifies all your debts. Child maintenance arrears are reported to the Child Maintenance Service or claimed by the parent with care. Your executor must pay these arrears from your estate before distributing any inheritance to beneficiaries named in your will.

The order of payments from your estate:

  1. Funeral costs
  2. Testamentary and administration expenses
  3. Secured debts (like mortgages)
  4. Priority debts (including child maintenance arrears)
  5. Unsecured debts (credit cards, personal loans)
  6. Legacies to beneficiaries

Child maintenance arrears rank as priority debts, which means they're paid before most other obligations.

David owed £12,000 in child maintenance arrears when he died. His will left £50,000 to his new partner and £20,000 to his brother. But his estate was only worth £65,000. After funeral costs (£4,000) and executor fees (£2,000), only £59,000 remained.

The £12,000 arrears were paid first. That left £47,000 for his beneficiaries—not the £70,000 he'd intended to leave. His partner received £33,500, and his brother received £13,500. His children—who were owed the arrears—received the £12,000 they were already legally entitled to, but nothing more.

If David had owed £60,000 in arrears, there wouldn't have been enough in his estate to cover them fully. The arrears would take everything, and his named beneficiaries would receive nothing.

What if the estate can't pay the arrears in full?

If your estate is insolvent (debts exceed assets), arrears are paid proportionally with other debts of the same rank. The parent with care may only receive a fraction of what's owed. But the named beneficiaries in your will receive nothing until all debts are settled.

This is why staying current on child maintenance isn't just about avoiding enforcement action during your life—it's about ensuring your estate can fulfill your wishes after your death.

Can Children Claim More from Your Estate?

Yes. Even if you leave your children nothing in your will, they can challenge your estate under the Inheritance (Provision for Family and Dependants) Act 1975.

This Act allows certain people—including children—to apply to the court if they believe a will (or intestacy rules) failed to make "reasonable financial provision" for their maintenance. If the court agrees, it can order your estate to make payments or transfer assets to the child.

Who can claim:

  • Biological children (including adult children in some cases)
  • Adopted children
  • Children treated as "children of the family" during marriage

When children can claim:

Children under 18 can always apply. Adult children can only apply if they can demonstrate they were being maintained by the deceased immediately before death, or if they have a disability that prevents them from maintaining themselves.

What the court considers:

The court weighs several factors:

  • The child's financial needs and resources
  • The size and nature of the estate
  • The deceased parent's obligations and responsibilities toward the child
  • Any disability the child has
  • How the child was maintained before the parent's death
  • The existence of a Child Maintenance Service calculation or court order

Rachel's father left his entire £600,000 estate to his second wife. Rachel, 15, had been receiving £800 monthly in child maintenance, which stopped when he died. Rachel's mother applied under the Act on Rachel's behalf.

The court noted:

  • Rachel had three more years of compulsory education
  • Her father had been actively supporting her financially
  • The estate was substantial
  • The widow had her own pension and assets

The court ordered the estate to pay Rachel a £120,000 lump sum, held in trust until she turned 18, to provide for her maintenance and education. This came directly from the widow's inheritance.

Important: You cannot prevent a child maintenance claim by writing a clause in your will that says "my children shall receive nothing" or "no one may challenge this will." Such clauses have no legal effect. The court's power under the 1975 Act overrides your stated wishes if it finds you failed to provide reasonably for your child's maintenance.

How to reduce the risk of claims:

The best way to avoid a successful claim is to provide reasonably for your children in your will. You don't have to leave them an equal share or even the largest share, but you should demonstrate that you considered their needs and made some provision.

If you genuinely believe leaving nothing is appropriate (for example, if the child is financially independent and has significant resources), document your reasoning in a letter of wishes. While not legally binding, it helps the court understand your intentions.

Estate Planning Strategies for Parents Paying Maintenance

If you're paying child maintenance, your estate planning should ensure your children's financial security doesn't depend on maintenance payments that will stop when you die.

Strategy 1: Leave a meaningful inheritance

The most straightforward approach is leaving your children a significant portion of your estate. This provides capital to replace the income maintenance provided.

Calculate roughly what you'll pay in maintenance over the remaining years: if you pay £600 monthly and your child is 10, you'll pay £72,000 before they turn 16 (six years × £12,000). Leaving at least this amount—or ideally more—demonstrates you've considered their needs.

Strategy 2: Use life insurance written in trust

Life insurance is the most effective tool for parents paying maintenance. A policy written in trust pays out directly to your children without passing through your estate. This means:

  • Funds are available immediately (not delayed by probate)
  • The payout doesn't count toward inheritance tax
  • Your children receive the money regardless of other estate debts
  • You can control who manages the funds until children reach a specified age

Tom paid £500 monthly to his ex-wife for their daughter. He took out a £150,000 life insurance policy written in trust, with his daughter as beneficiary and his brother as trustee. When Tom died unexpectedly at 41, the policy paid out within three weeks. His brother used the funds to continue supporting Tom's daughter exactly as the maintenance payments had.

Strategy 3: Appoint appropriate trustees

If your children are minors, any inheritance will be held in trust until they turn 18. Choose trustees carefully. Your ex-partner may have legal rights as guardian, but you can appoint additional trustees to ensure oversight.

Consider appointing:

  • A trusted family member
  • A professional trustee (solicitor or accountant)
  • A combination of personal and professional trustees

Give clear written guidance on how you want funds used: education, living costs, specific life events.

Strategy 4: Consider a discretionary trust

For larger estates or complex family situations, a discretionary trust can provide flexibility. Rather than leaving a fixed sum, you place assets in trust with broad discretion for trustees to provide for your children's needs as they arise.

This is particularly useful if you're remarried, have children from multiple relationships, or want to protect funds from being mismanaged.

Strategy 5: Review and update regularly

Your will should be reviewed every time your maintenance obligations change:

  • When your income changes significantly
  • When a child turns 16 or stops education
  • When you have additional children
  • When your relationship or financial circumstances change

Estate Planning for Parents Receiving Maintenance

If you rely on child maintenance payments, estate planning is equally critical—because when the paying parent dies, that income disappears.

Strategy 1: Build emergency savings

Maintenance payments can stop suddenly if the other parent dies or becomes unable to work. Aim to save 3-6 months of essential expenses. This buys time to adjust finances or pursue claims against an estate.

Strategy 2: Understand the other parent's estate plan

You can't control their will, but you can ask questions:

  • Have they made a will?
  • Are the children named as beneficiaries?
  • Is there life insurance for the children's benefit?
  • Who would manage the children's inheritance if they're minors?

These conversations are uncomfortable but essential. Frame them around your children's security, not your own interests.

Strategy 3: Know your children's claim rights

If the other parent dies leaving your children nothing, you can apply on their behalf under the Inheritance (Provision for Family and Dependants) Act 1975. You typically have six months from the grant of probate to file a claim.

Document:

  • Current maintenance arrangements (CMS calculation or court order)
  • Evidence of the children's needs
  • The paying parent's income and assets (if known)
  • How the children were being supported before death

Strategy 4: Protect your own estate for your children

Don't assume the other parent's estate will provide. Create your own will leaving your assets to your children. Even if your estate is modest, it ensures your wishes are clear.

Name guardians for your children (this won't affect the other parent's rights if they're still living, but it covers scenarios where both parents die).

Strategy 5: Consider life insurance on the paying parent's life

If financially feasible, you can take out life insurance on the other parent's life with your children as beneficiaries. This requires their consent (they must complete a medical questionnaire), but it ensures funds are available if they die.

This is most practical when:

  • You have an amicable co-parenting relationship
  • Both parents recognize the value
  • The paying parent is willing to undergo medical underwriting

Lisa and Mark divorced but agreed to each take out £100,000 policies for their children. Neither was required by court order, but both recognized that their children's security depended on both parents staying alive. When Mark died at 45, both policies paid out, ensuring their children's future was secure.

Life Insurance and Child Maintenance Obligations

Life insurance is not child maintenance, but it's the closest thing to replacing maintenance income after death.

Key differences:

  • Maintenance is ongoing monthly payments. Life insurance is a one-time lump sum.
  • Maintenance is legally required while you're alive. Life insurance is voluntary.
  • Maintenance stops at 16 (or 20 if in education). Life insurance pays out whenever you die.

Why write your policy in trust:

When life insurance is written in trust, the payout:

  • Goes directly to beneficiaries (not through your estate)
  • Isn't subject to inheritance tax
  • Isn't counted toward your estate's debts
  • Can't be claimed by creditors
  • Pays out faster (typically 2-4 weeks vs 6-12 months for probate)

Setting up a trust is usually free through your insurer and takes about 15 minutes.

How much cover do you need?

A rough calculation:

  1. Multiply your monthly maintenance by the number of months until your youngest child turns 16 (or 20 if they'll likely stay in education)
  2. Add anticipated large expenses (school fees, university costs)
  3. Add 20-30% buffer for inflation and unexpected needs

Example: You pay £750 monthly, your children are 8 and 10, and you expect both to attend university.

  • Youngest child: 8 years until age 16 × £750 × 12 months = £72,000
  • Extra support through university (ages 16-21): 5 years × £9,000 = £45,000
  • University costs (two children): £50,000
  • Buffer (20%): £33,000

Total coverage needed: £200,000

What if you can't afford large coverage?

Even a smaller policy helps. A £50,000 policy can bridge several years of lost maintenance, even if it doesn't replace all future payments.

Can courts require life insurance?

Yes. During divorce proceedings, courts can order a parent to maintain life insurance for the children's benefit as part of a financial settlement. This is separate from ongoing maintenance but serves the same protective purpose.

The order typically requires:

  • Minimum coverage amount
  • Children named as beneficiaries
  • Policy written in trust
  • Regular proof of premium payments

If you're ordered to maintain life insurance and let the policy lapse, your ex-partner can return to court for enforcement.

Common Mistakes Divorced Parents Make

Mistake 1: Assuming maintenance continues after death

The parent receiving maintenance assumes payments will continue from the estate. They don't. Only arrears owed at death are recoverable.

Mistake 2: Leaving children nothing in your will

The parent paying maintenance assumes "I pay maintenance, so I don't need to leave them anything in my will." Wrong. Maintenance stops at death, and children can challenge an estate that leaves them nothing.

Mistake 3: Not updating your will after divorce

Your will from your marriage may leave everything to your ex-spouse. Divorce doesn't automatically revoke gifts to an ex-spouse in all circumstances. Update your will immediately after divorce.

Mistake 4: Letting your ex-partner control your children's inheritance

If you die intestate (without a will) and your children are minors, their inheritance is managed by their legal guardians—likely your ex-partner. If you don't trust them to manage funds wisely, make a will appointing different trustees.

Mistake 5: Ignoring arrears

Child maintenance arrears don't disappear. They accumulate and become a debt against your estate. With 68% of paying parents making at least some maintenance payments through the Child Maintenance Service, many estates face arrears claims that could have been avoided with better planning.

Mistake 6: Believing a "clean break" includes children

A clean break financial settlement in divorce only applies to spousal maintenance. It never applies to child maintenance. You cannot legally agree to a clean break from child maintenance obligations—they continue regardless of any agreement between you and your ex-partner.

Mistake 7: Not communicating about estate planning

Neither parent knows what the other has planned. When the paying parent dies, everyone is caught off guard. Even difficult conversations are better than complete silence.

Mistake 8: Failing to review plans as children grow

Your will from when your children were toddlers may not reflect their needs at age 15. Review every 3-5 years or whenever significant changes occur.

Frequently Asked Questions

Q: Does child maintenance automatically stop when a parent dies?

A: Yes, ongoing child maintenance payments cease upon the death of the paying parent. However, any arrears owed at the time of death remain as a debt that can be claimed from the deceased parent's estate through the Child Maintenance Service or legal proceedings.

Q: Can children claim from a deceased parent's estate if they received no inheritance?

A: Yes. Under the Inheritance (Provision for Family and Dependants) Act 1975, children can apply to the court for reasonable financial provision from a deceased parent's estate if the will or intestacy rules fail to provide adequate support for their maintenance needs.

Q: Should I mention child maintenance arrangements in my will?

A: Your will cannot enforce ongoing child maintenance payments after death, but you can specify how your estate should provide for your children through inheritance, life insurance proceeds in trust, or specific bequests for their education and welfare needs.

Q: How does a 'clean break' divorce settlement affect child maintenance obligations?

A: A clean break order only applies to spousal maintenance, never to child maintenance. Parents cannot legally agree to a clean break from child maintenance obligations—these continue until the child turns 16 (or 20 if in full-time education), regardless of divorce settlements.

Q: Can my ex-partner manage my children's inheritance if I die without a will?

A: Yes. If you die intestate (without a will) and your children are under 18, their inheritance will be held in trust and managed by their legal guardians—which could be your ex-partner. Creating a will allows you to appoint specific trustees you trust to manage funds for your children.

Q: Does life insurance count as part of child maintenance obligations?

A: Life insurance proceeds are not considered ongoing child maintenance, but they can provide crucial financial support for children after a parent's death. Writing a life insurance policy in trust ensures payouts go directly to your children's benefit without being tied up in your estate.

Q: What happens to child maintenance arrears if the paying parent dies?

A: Arrears owed at the time of death become a debt against the deceased's estate. The Child Maintenance Service or the parent with care can claim these outstanding amounts from the estate before other beneficiaries receive their inheritance.

Conclusion

Key takeaways:

  • Child maintenance payments stop immediately when the paying parent dies—only arrears survive as estate debts
  • Children can challenge your estate under the 1975 Act if you leave them nothing, regardless of maintenance paid during life
  • Life insurance written in trust is the most effective way to replace lost maintenance income after death
  • Clean break divorce settlements never apply to child maintenance—these obligations continue until children reach 16 (or 20 if in education)
  • Dying without a will means your ex-partner may control your children's inheritance as their legal guardian

Your children's financial security shouldn't end with your life. Whether you're paying or receiving maintenance, proper estate planning ensures they're protected when the law no longer requires it.

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Legal Disclaimer:

This article provides general information only and does not constitute legal or financial advice. WUHLD is not a law firm and does not provide legal advice. Laws and guidance change and their application depends on your circumstances. For advice about your situation, consult a qualified solicitor or regulated professional. Unless stated otherwise, information relates to England and Wales.

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