When a child with a disability reaches the age of majority (18 or 19 in most cases in California), many parents assume their legal obligation to provide child support ends. But for families whose adult children remain unable to support themselves, the laws offer a crucial exception — and a significant legislative update has made it even more impactful.
Understanding these changes is essential for parents, attorneys, and adult children alike.
The Foundation: California’s Long-Standing Duty to Support
First, it’s important to understand that the duty to support an adult child with a disability is not new. California law has long held that a parent’s child support obligation doesn’t automatically expire at 18 if their child is incapacitated.
This duty is established in California Family Code § 3910(a). This statute creates a two-prong test that a court must find to be true:
- The child must be “incapacitated from earning a living,” and
- The child must be “without sufficient means.”
Let’s break these down:
- Incapacitated: This means the child has a physical or mental disability that prevents them from being able to hold a job and be self-supporting. This is a medical and factual question that often requires documentation from doctors or vocational experts.
- Without Sufficient Means: This is a financial test. Does the child have their own income or assets to support themselves? If not, they are “without sufficient means,” and the parents retain a mutual, equal responsibility to support them to the extent of their ability.
For decades, this law has been the sole mechanism for parents (typically the custodial parent) to petition the court for a new support order for their adult child. The court would run a new calculation, and the non-custodial parent would be ordered to pay “adult child support.
This seemed like a straightforward solution. But it had a hidden, devastating flaw.
What Changed: A High-Impact Legislative Update
In recent years, the California Legislature amended AB 2397 (set to take effect January 1, 2025) to revise the law under California Family Code § 3910. The statute now reads:
“Each parent of a child has an equal responsibility to maintain, to the extent of their ability, their child of whatever age who is incapacitated from earning a living and without sufficient means.”
Additionally, the statute now explicitly allows a court to order that support payments be made to a special needs trust, provided the trust meets federal and state requirements.
That amendment means two major things:
- A parent’s duty to support may extend beyond age 18 or 19 if the adult child is incapacitated and lacks means.
- The payments can now be directed into a properly structured special-needs trust, protecting the child’s eligibility for benefits like SSI or Medi-Cal.
This legislative update is a game-changer for families and attorneys planning support for adult children with disabilities.
Assembly Bill 2397 and the Special Needs Trust
After years of advocacy from family law and disability rights attorneys, the California legislature passed Assembly Bill (AB) 2397. This law, which took effect on January 1, 2025, makes one simple but profoundly important change to the law.
It adds Family Code § 3910(b), which explicitly gives the court the authority to order support payments to be paid directly into a Special Needs Trust (SNT).
This one change solves the entire problem.
What Is a Special Needs Trust?
A Special Needs Trust (SNT) is a specialized legal vehicle designed to hold assets for a person with a disability without having those assets count against them for means-tested benefits like SSI and Medi-Cal.
The money in the trust is not “owned” by the beneficiary. Instead, it is managed by a person called a “Trustee” (who can be a parent, family member, or professional) and is used for the sole benefit of the disabled individual.
How the New Law Fixes the Problem
With this new law, the legal process now looks like this:
- A parent petitions the court for adult child support under § 3910(a).
- At the same time, the parent (or a judge) establishes a “first-party” Special Needs Trust for the adult child.
- The court issues the support order, but under the new § 3910(b), it directs the paying parent to make all support payments directly to the Trustee of the Special Needs Trust.
The impact is immediate and life-changing:
- Because the support payments go into the SNT, the SSA does not count them as income for the disabled adult.
- The adult child continues to receive their full, un-reduced SSI benefit each month, which covers their basic food and shelter.
- The child support payments accumulate inside the SNT, creating a separate fund that the Trustee can use to pay for all the critical “extras” that enhance the child’s quality of life.
This new law finally allows parental support and government benefits to “stack” on top of each other, as intended, rather than canceling each other out.
The “Catch-22”: How Support Payments Hurt Disabled Adults
The most critical financial resource for many disabled adults is Supplemental Security Income (SSI).
SSI is a federal program that provides a monthly cash benefit to people who are disabled and have very low income and few assets. It is “means-tested,” meaning that receiving almost any other income can reduce or completely eliminate the SSI benefit.
This created the “Catch-22”:
- A family court judge, following Family Code § 3910, would order a parent to pay, for example, $800 a month in adult child support.
- This support was typically paid directly to the adult child or the custodial parent on their behalf.
- The Social Security Administration (SSA) would see this $800 as “unearned income” for the disabled adult.
- As a result, the SSA would then reduce the adult child’s monthly SSI benefit by a significant amount (often dollar-for-dollar after a small exclusion).
The outcome was heartbreaking. The parent’s child support payment wasn’t adding to the child’s resources; it was simply replacing the government benefits the child was otherwise entitled to. The net financial gain for the child was often zero. The family was stuck, unable to use the parent’s support to pay for the “extras” that SSI doesn’t cover—things like specialized therapies, better-quality-of-life items, recreation, or specialized equipment.
Practical Steps for Parents and Attorneys
If Your Child is Approaching 18: You cannot wait. A standard child support order will terminate automatically. You must file a formal Request for Order with the family court before your child’s 18th birthday (or 19th, if they are still in high school) to establish a new adult child support order under § 3910. As part of this, you must also have a Special Needs Trust properly drafted and ready to receive the funds.
For the Paying (or Potentially Paying) Parent:
- Recognize the obligation early: If a child has a disability and cannot work, the support obligation may not end simply because they turned 18 or 19.
- Review existing orders and divorce/judgment language: Determine whether your case includes adult-child support or an extension clause.
- Consult an attorney about special-needs trust structuring: If you are ordered to support, the payments may go into a special needs trust. Setting it up correctly is critical.
- Document ability to pay: Your financial ability remains part of the analysis; courts will look at your capacity relative to the child’s need.
For the Receiving Parent (or the Adult Child’s Guardian):
- Gather evidence of disability and lack of earning capacity: Medical records, vocational assessments, and expert testimony will often be required.
- Show lack of means: Present the adult child’s income, assets, benefits, and need for ongoing support.
- Consider special-needs trust motions: Ask the court to direct payments into a trust so the adult child remains eligible for government benefits.
- Don’t assume support ends at 18: If you have a child who meets the disability standard, continuing support may be appropriate — and the law now explicitly supports that.
This legislation is more than a technical tweak to the family code. It’s a lifeline that provides immediate and future financial security, ensuring that support from both parents can be fully leveraged to give a disabled adult child the safest, richest, and most supported life possible.
If you are a parent whose adult child has a disability, or you are an attorney advising such families, now is the time to review your legal documents, assess eligibility under § 3910, and plan for special-needs trust options. Early, thoughtful planning helps prevent rushed litigation, lost benefits, or inadequate support.
Minella Law Group Can Help
At Minella Law Group, we help families navigate these intersections of family law, disability planning and trust law to ensure protection and stability for adult children with special needs.
📞 Call Minella Law Group today at 619-289-7948 to schedule a confidential consultation with one of our family law specialists. We’ll listen to your concerns, assess the situation, and create a clear strategy tailored to your goals.
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*Disclaimer: This article is for informational purposes only and does not constitute legal advice. For personalized guidance on your case, contact a licensed California family law attorney.