United States of America
Under New York law, a parent has no obligation to support an adult child. (Garbow, Application of)
This is the case even if the adult child is disabled. (Estate of Escher, Jarvis v. Jarvis)
Parents are only legally responsible for the support of their children until they turn 21 years old. A parent's responsibility for the support of their child ends when the child is 21 years old regardless of whether the child is a recipient or likely recipient of public assistance or care. (N.Y. Soc. Serv. Law § 101, N.Y. Fam. Ct. Act § 415)
N.Y. Fam. Ct. Act § 415 provides that parents are only responsible for the support of their children until they are 21 years old:
Duties to support recipient of public assistance or welfare and patients in institutions in the department of mental hygiene. Except as otherwise provided by law, the spouse or parent of a recipient of public assistance or care or of a person liable to become in need thereof or of a patient in an institution in the department of mental hygiene, if of sufficient ability, is responsible for the support of such person or patient, provided that a parent shall be responsible only for the support of his child or children who have not attained the age of twenty-one years. In its discretion, the court may require any such person to contribute a fair and reasonable sum for the support of such relative and may apportion the costs of such support among such persons as may be just and appropriate in view of the needs of the petitioner and the other circumstances of the case and their respective means. Step-parents shall in like manner be responsible for the support of children under the age of twenty-one years.
Further, under N.Y. Soc. Serv. Law § 101 a parent whose child is a recipient or likely recipient of public assistance or care is responsible for the support of their child only until the child is 21 years old:
1. Except as otherwise provided by law, the spouse or parent of a recipient of public assistance or care or of a person liable to become in need thereof shall, if of sufficient ability, be responsible for the support of such person, provided that a parent shall be responsible only for the support of a child under the age of twenty-one years. Step-parents shall in like manner be responsible for the support of step-children under the age of twenty-one years. Nothing herein shall impose any liability upon a person to support the adopted child of his or her spouse if such child was adopted after the adopting spouse is living separate and apart from the non-adopting spouse pursuant to a legally recognizable separation agreement or decree under the domestic relations law. Such liability shall not be imposed for so long as the spouses remain separate and apart after the adoption.
N.Y. Mental Hyg. Law § 43.03 also states that a patient's parents are only liable for Department of Health and Mental Hygiene services fees if the patient is under 21 years old:
(a) The patient, his estate, his spouse, his parents or his legal guardian if he is under twenty-one years of age, and his committee and any fiduciary or representative payee holding assets for him or on his behalf are jointly and severally liable for the fees for services rendered to the patient. Parents or spouses of parents are not liable for the fees for services rendered to a disabled child under twenty-one years of age, who does not share the common household even if the child returns to the common household for periodic visits. For purposes of this section a child is considered disabled if she/he meets the definition of a blind or disabled child under regulations prescribed by the social security act for medical assistance.
In the context of child support obligations between separated and divorced parents, N.Y. Dom. Rel. Law § 240-D provides that a person who would otherwise be chargeable for the support of a minor child is chargeable for the support of the child until the child reaches the age of 26 if the child is developmentally disabled, resides with the person seeking such support, and is principally dependent on such person for maintenance:
1. Notwithstanding any other law, a person who would otherwise be chargeable under law with support of a minor child is also chargeable with the support of any such individual until such individual reaches the age of twenty-six, when it shall appear to the satisfaction of the court that the person is developmentally disabled as defined in subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker authorized to practice under title eight of the education law, and acting within their lawful scope of practice.
2. Upon petition brought by such person, the court shall make its award for support for such individual with a developmental disability in accordance with the provisions of subdivision one-b of section two hundred forty of this article. In addition to the provisions of subdivision one-b of section two hundred forty of this article, the court may consider whether the financial responsibility of caring for the individ- ual has been unreasonably placed on one parent when determining the support obligation. The duration of time the court may use when considering this factor shall be limited to the time period from when the child turned twenty-one until the individual turns twenty-six. If a child support order ended at the age of eighteen then such time period shall be from when the child turned eighteen until the individual turns twenty-six.
In Garbow, Application of, 591 N.Y.S.2d 754, 155 Misc.2d 1001 (N.Y. Surr. Ct. 1992), the Surrogate's Court of the City of New York, Kings County, dealt with whether a trust could be created on behalf of a person under a disability that would pay for his supplemental needs but would not pay for his basic needs that the disabled individual was already receiving from the state. In allowing the trust to be created, the Court noted that under New York law, a parent has no obligation to support an adult child (at 1004-1005):
Both of the standards have been met herein. The record contains evidence of the conservatee's prior use of trust arrangements as well as other declarations indicative of or consistent with an intention to preserve her son's government entitlements. From an objective perspective, the propriety of creating the proposed trust, which ensures the conservatee's well-being during her lifetime while enabling her son to enjoy an enhanced quality of life upon her death without risking his public assistance, cannot be questioned. To that end, supplemental needs type trusts created by a third person who has no obligation to support the beneficiary thereof, will not disqualify the beneficiary from public assistance where, as here, the settlor's intention that the distributions are to supplement and not supplant the beneficiary's government entitlements is clearly and unequivocably expressed. See e.g. Matter of Escher, 52 N.Y.2d 1006, 438 N.Y.S.2d 293, 420 N.E.2d 91 (1981); Matter of Scatamacchia, 150 Misc.2d 624, 569 N.Y.S.2d 873 (SurrCt Nassau Co1991); Matter of Surut, 141 Misc.2d 1005, 535 N.Y.S.2d 922 (Surr.Ct. N.Y.Co.1988); Matter of Ross, 96 Misc.2d 463, 409 N.Y.S.2d 201 (Surr.Ct. Yates Co., 1978). Notably, under New York law, a parent has no obligation to support an adult child. See e.g. Domestic Relations Law § 32; Matter of Florence Hand, N.Y.L.J. March 23, 1983, p. 15, col 2 (SurrCt Suffolk Co); Matter of Escher, 94 Misc.2d 952, 407 N.Y.S.2d 106 (Surr.Ct.Bronx Co.1978). The recent decisions of the courts of this state disapproving of the use of supplemental needs trusts and other trust arrangements [155 Misc.2d 1005] for the purpose of insulating the trust assets from public assistance claims of the beneficiaries thereof involve either self-settled trusts, see e.g. State v. Coyle, 171 A.D.2d 288, 575 N.Y.S.2d 975 (3rd Dept1991); Tutino v. Perales, 153 A.D.2d 181, 550 N.Y.S.2d 21 (2nd Dept1990), app. dism'd, 75 N.Y.2d 1004, 557 N.Y.S.2d 310, 556 N.E.2d 1117, app den. 76 N.Y.2d 705, 559 N.Y.S.2d 984, 559 N.E.2d 678 (1990); Matter of Arens, N.Y.L.J. 11/6/92, p. 26 col. 2 (SurrCt Kings Co); Matter of Shaw, N.Y.L.J. 7/8/92, p. 33 col. 1 (SurrCt Nassau Co) or third party trusts whereby its terms the claimed intention to limit the use of the trust assets to providing non-support items is not adequately expressed. See gen. Hoelzer v. Blum, 93 A.D.2d 605, 462 N.Y.S.2d 684 (2nd Dept1983); Oddo v. Blum, 83 A.D.2d 868, 442 N.Y.S.2d 23 (2nd Dept1981). None of the concerns expressed therein are applicable to the proposed trust and the court is unaware of any New York State or federal proscriptions which would preclude the relief requested herein. Notably, the inability of this court to authorize the creation of a supplemental needs trust for the purpose of insulating the inheritance of a distributee/public assistance recipient after the death of the conservatee/settlor herein, assuming she were to die intestate, provides additional support for granting the relief. See e.g. Matter of Arens, supra.
In Jarvis v. Jarvis, 99 Misc.2d 79, 415 N.Y.S.2d 557 (N.Y. Sup. Ct. 1978), the Supreme Court, Special Term, New York County, heard a case regarding the payment of child support for an adult child who was "brain damaged and mentally handicapped" and who lived in a group home. The wife asked for the child support to be increased and the husband argued that the child support should remain unchanged. The Court noted that, in New York, absent a contract, parents are not obligated to support their children over the age of majority and that parents are specifically relieved of the responsibility of supporting adult handicapped children (at 80-81):
Defendant argues that he has fully discharged his obligations under the separation agreement (a fact not disputed by plaintiff) and that this Court has no authority to require an increase in support for Regina. Defendant contends that a parent is not obligated under the laws of New York to support a handicapped child beyond her majority, and that this Court may not enlarge the contractual obligation which he has voluntarily undertaken.
Plaintiff contends that Regina's condition has deteriorated since the entry of the judgment of divorce. She has been placed in a sheltered living environment sponsored by the Bronx Developmental Services Program. According to plaintiff, it will cost $17,330 per year to sustain Regina at a middle class standard of living. Plaintiff now receives $55,500 per year, unallocated, from defendant. She claims that the maximum available for Regina under the terms of the separation agreement is $9,750. This is inadequate to meet the costs of the program, and plaintiff asks the Court to direct defendant to pay the difference.
The Court has carefully considered all of plaintiff's arguments in support of an upward modification and finds that they are legally insufficient. In New York, absent a contract, parents are not obligated to support their children post-majority. DRL § 31(3), 32, Family Court Act § 415. Parents are specifically relieved of the responsibility of supporting adult handicapped children. Chapter 256 of the Laws of 1966, Amending Family Court Act, § 415; Mental Hygiene Law, § 43.03; DRL, § 31(3).
In Estate of Escher, 407 N.Y.S.2d 106, 94 Misc.2d 952 (N.Y. Surr. Ct. 1978), the Surrogate's Court of the City of New York, Bronx County heard a case about whether the New York State Department of Mental Hygiene could claim funds from a testator's trust to pay for the cost of care of a trust beneficiary who was a patient at a psychiatric hospital. The Court noted that the testator's duty to support his disabled adult daughter, the patient in question, who was confined to a wheelchair and in need of "total care", ceased when she reached the age of 21 (at 960):
In examining the relevance of any controlling public policy, significance must be attached to the statutory obligations which the testator would have for the life beneficiary if he were alive. The testator, if alive, would have no obligation to provide for the cost of his daughter's maintenance. This duty would have ceased when she reached age 21 (Domestic Relations Law § 32(2); Social Services Law § 101(1); Family Court Act § 413). Thus, if the testator were still alive, regardless of the scope of his assets, his daughter would be entitled to have the cost of her care at Rockland Psychiatric Center met from public funds in the absence of the daughter having assets of her own. Even if the daughter were a person who the testator was still obligated to support, if able, this is an obligation which would cease upon his death and would not be an obligation which upon his demise became an estate obligation (See: Domestic Relations Law § 32(3); Family Court Act § 414). Nor does any statute exist which would require him to make his daughter a beneficiary of his estate. Objectant presents neither statutory nor common law authority which would justify impressing on a testamentary trust a greater obligation than testator would have if alive.