System Overview
The United States operates three parallel models for intestate succession, each producing different default distributions. Federal vs. state family law creates a structural tension: family law (marriage, divorce, custody, child support) is primarily state law, but the federal government has overlaid a mandatory child support enforcement infrastructure through Title IV-D of the Social Security Act (42 U.S.C. §§ 651-669b), enacted in 1975. This federal overlay creates a system in which states receive 66% federal reimbursement for enforcement costs, creating a direct financial incentive for aggressive enforcement — regardless of the obligor's ability to pay.
The U.S. Supreme Court has established a constitutional floor for parental rights through the Due Process Clause of the Fourteenth Amendment: parents have a "fundamental liberty interest" in the care, custody, and control of their children (Troxel v. Granville, 530 U.S. 57 (2000)). The state cannot sever this interest without meeting specific procedural and evidentiary requirements.
Biological Death Defaults — Three US Intestacy Models
| Model | Spouse's Share | Children's Share | Statutory Basis |
|---|---|---|---|
| UPC states (16 states) | Entire estate if no descendants/parents; $300,000 + 75% if parents survive; $225,000 + 50% if all descendants are shared; $150,000 + 50% if non-shared descendants | Balance not passing to spouse, distributed per capita at each generation | UPC § 2-102 (spouse), § 2-103 (other heirs) |
| Community property states (9 states) | Retains own 50% of community property automatically; inherits decedent's 50% under most states' intestacy; separate property share varies (CA: 1/3 if 2+ children; TX: 1/3 personalty + life estate in 1/3 realty) | Decedent's separate property not passing to spouse; TX: 2/3 of separate property; CA: 2/3 if 2+ children, 1/2 if 1 child | Cal. Prob. Code §§ 6401-6402; Tex. Estates Code §§ 201.001-201.003 |
| Common law / separate property states (~25 states) | First statutory amount + fraction of balance: NY: $50,000 + 50%; PA: $30,000 + 50%; FL: entire estate if no descendants, or 50% if non-shared descendants | Balance not passing to spouse, divided equally among children (per stirpes or per capita depending on state) | N.Y. Est. Powers & Trusts Law § 4-1.1; 20 Pa. C.S. § 2102; Fla. Stat. § 732.102 |
Title IV-D Incentive Structure
Under 42 U.S.C. § 655, the federal government reimburses states for 66% of their administrative costs for operating child support enforcement programs. For every $3 a state spends on enforcement, the federal government pays $2. In addition, 42 U.S.C. § 658a creates a separate incentive payment pool based on five performance measures: paternity establishment, order establishment, current collections rate, arrearage collections rate, and cost-effectiveness.
The combined effect is that states face a structural financial incentive to maximize enforcement activity. The system profits from the existence of obligors in arrearage. An obligor who pays on time generates less enforcement activity (and therefore less federal reimbursement) than an obligor who falls behind and triggers the full enforcement cascade. The system has no equivalent incentive to verify that the underlying support order is calibrated to the obligor's actual ability to pay.
Enforcement Cascade (42 U.S.C. § 666)
| Enforcement Mechanism | Trigger | Statutory Basis |
|---|---|---|
| Automatic income withholding | Any support order (no arrearage required) | § 666(a)(1)-(2) |
| Tax refund intercept (federal and state) | Arrearage exists | § 664 |
| Credit bureau reporting | Arrearage reported | § 666(a)(7) |
| Driver's license suspension | Arrearage; state-determined threshold | § 666(a)(16) |
| Professional/occupational license suspension | Arrearage; state-determined threshold | § 666(a)(16) |
| Passport denial | Arrearage exceeds $2,500 | § 652(k) |
| Financial institution data match (asset seizure) | Arrearage exists | § 666(a)(17) |
| Federal criminal prosecution | Willful failure; $5,000+ arrearage or 1+ year unpaid; interstate | 18 U.S.C. § 228 |
| Civil contempt / incarceration | Court discretion; ability-to-pay finding required | State law, subject to Turner |
None of these mechanisms have a corresponding automatic review of whether the underlying order remains calibrated to the obligor's current income. Modification requires the obligor to file a motion and prove a "substantial change in circumstances" — an affirmative burden placed on the person already subject to the enforcement cascade.
Parental Death Defaults
| Event | Default | Statutory Basis |
|---|---|---|
| Allocation judgment signed without counsel review | Order enters as drafted by the party whose counsel prepared it. No independent fitness adjudication required. Consent is presumed from signature. | State domestic relations codes; cf. Lassiter v. Dep't of Social Services, 452 U.S. 18 (1981) |
| Child support order entered | Immediate income withholding from obligor's wages without need for judicial hearing. Order transmitted to employer within 2 business days. | 42 U.S.C. § 666(a)(1); § 654(4) |
| Arrearage accumulates | Automatic enforcement escalation: tax refund intercept, passport denial at $2,500, license suspensions, credit reporting, federal criminal prosecution | 42 U.S.C. §§ 652(k), 664, 666(a)(7), 666(a)(16); 18 U.S.C. § 228 |
| Contempt petition filed | Body attachment (arrest warrant) may issue. Obligor faces incarceration unless the four Turner safeguards are satisfied. In practice, many courts issue body attachments before conducting ability-to-pay findings. | Turner v. Rogers, 564 U.S. 431 (2011); state contempt statutes |
Financial Death Defaults
| Event | Default | Statutory Basis |
|---|---|---|
| Chapter 7 bankruptcy filed | Automatic stay halts most collection actions. All nonexempt assets liquidated by trustee. | 11 U.S.C. § 301, § 362 |
| Discharge granted | Most unsecured debts permanently discharged. Creditors permanently enjoined from collecting. | 11 U.S.C. § 727, § 524 |
| DSO exception | Domestic support obligations are categorically nondischargeable. DSOs receive first priority among unsecured claims. Child support, alimony, and related attorney fees survive bankruptcy. | 11 U.S.C. § 523(a)(5), § 101(14A), § 507(a)(1) |
| Property division from divorce | Also nondischargeable after BAPCPA 2005. Previously dischargeable under the 1978 Act. | 11 U.S.C. § 523(a)(15), as amended by BAPCPA, Pub. L. 109-8 |
Floor Mechanisms
| Floor | Mechanism | Can It Be Breached? | Statutory / Case Basis |
|---|---|---|---|
| Parental liberty interest | Fundamental right under the Due Process Clause. "Perhaps the oldest of the fundamental liberty interests recognized by this Court." | Requires unfitness finding supported by clear and convincing evidence. State cannot presume unfitness. | Troxel v. Granville, 530 U.S. 57 (2000); Stanley v. Illinois, 405 U.S. 645 (1972); Santosky v. Kramer, 455 U.S. 745 (1982) |
| No imprisonment without ability-to-pay finding | Four required safeguards: (1) notice that ability to pay is critical issue; (2) form to elicit financial information; (3) opportunity to respond at hearing; (4) express court finding of ability to pay. | Violated routinely. Turner himself was jailed without any of the four safeguards. Many courts issue body attachments without ability-to-pay hearings. | Turner v. Rogers, 564 U.S. 431 (2011) |
| No imprisonment for debt | State constitutional provisions in 41 states. Federal prohibition in 28 U.S.C. § 2007. | Courts classify child support arrearages as "duties" or "obligations," not "debts," thereby circumventing the prohibition. Contempt classified as civil, not criminal. | Ill. Const. art. I, § 14; Cal. Const. art. I, § 10; Tex. Const. art. I, § 18; Ohio Const. art. I, § 15 |
| Elective share (inheritance) | Surviving spouse can override decedent's will and claim a statutory minimum share of the augmented estate. UPC: 50% of marital-property portion, with $75,000 supplemental floor. | Cannot be fully circumvented — "augmented estate" recaptures nonprobate transfers. Some states allow waiver by prenuptial agreement. | UPC § 2-202 through § 2-208; N.Y. Est. Powers & Trusts Law § 5-1.1-A; Fla. Stat. § 732.2065 |
Who Wrote the Defaults
| Default | Author | Date / Era | Whose Interest |
|---|---|---|---|
| Intestacy | State legislatures (UPC drafted by Uniform Law Commission) | UPC: 1969 (original), 1990 (major revision), 2008 (adjustments) | Surviving spouse (UPC model heavily favors spouse); children in French/Louisiana model |
| Title IV-D | U.S. Congress | 1975 (P.L. 93-647); amendments: 1984, 1988, 1996 (PRWORA), 1998 | The state treasury (66% federal reimbursement). Original purpose: recoup AFDC payments from noncustodial parents. |
| Allocation judgment | Drafted by one party's counsel | Per case | The drafting party. The court adopts the proposed order unless the other party objects — but objection requires legal knowledge. |
| Bankruptcy DSO exceptions | U.S. Congress | 1978 (original § 523(a)(5)); 2005 (BAPCPA expanded to all marital obligations) | Custodial parent and state. A child support obligor is the only category of debtor for whom no discharge mechanism exists. |
Domestic support obligations are the only obligation in American law with no discharge mechanism. Every other debt — commercial, contractual, tortious — can be discharged in bankruptcy. DSOs cannot be discharged, cannot be reduced retroactively, and accumulate continuously regardless of ability to pay. The obligor has no exit mechanism. The system has no equivalent incentive to verify that the order matches the obligor's capacity.
Note
England & Wales, Australia, Canada, India, South Africa — research in progress.