What Happens to My Child if I Pass Away After Divorce?

A last will & testament

A will is a written, legal document that outlines your desires for the distribution of your property and the care of your minor children upon your death. This document is often called a “last will and testament." After your death, the court uses it to carry out your final wishes.

A will is relatively simple, as there aren't many legal requirements. To create one, you should understand what property you have and to whom you'd like to leave it. In other words, you need to have the capacity to distribute your property. This is also referred to as being of "sound mind."

What are the essential legal documents for protecting your children?

While a will is the primary document for naming a guardian, several other legal documents can strengthen your children's protection. Consider preparing these additional documents:

• Letter of intent. It accompanies your will and explains your reasoning for choosing a particular guardian, your parenting values, and your wishes for how your children should be raised. Though not legally binding, this letter helps the court understand your intentions and guides your chosen guardian.
• Standby guardianship designation. It allows a trusted person to assume temporary custody immediately if you become incapacitated or die, without waiting for court proceedings.
• Healthcare power of attorney for your children. It authorizes a designated adult to make medical decisions for your children if you're unavailable.
• Trust documents. If you're establishing financial provisions for your children, a trust specifies how assets should be managed and distributed.

If you share children with your former spouse, both of you should ideally name the same backup guardian in your respective wills, as conflicting designations can create confusion and legal disputes. Review and update these documents whenever your circumstances change, such as after remarriage, relocation, or if your designated guardian's situation changes significantly.

Dying intestate

When you don't have a will, which is also referred to as dying intestate, the court may decide who cares for your children after your death. Typically, if the other biological parent outlives you, then they retain custody of the child. In this situation, the court won't award guardianship to anyone else. 

What factors do courts consider when determining custody?

Beyond biological parentage, courts evaluate several factors when determining custody:

• Parental fitness. A history of alcohol or drug abuse may disqualify a surviving parent from custody.
• Adoption by stepparent. If your new spouse legally adopted your children, they retain custody after your death.
• Your stated wishes. While courts won't automatically enforce your will's guardian designation, they seriously consider your final requests.

However, you can impact the court's decision if you have a will. For example, if you designate someone other than the biological parent as the guardian of your child upon your death, it considers your last wishes. Although it won't automatically enforce your preferences, it considers your final requests in deciding who has custody of your children.

What happens to my property if I die without a will?

When both parents die without wills, property distribution and child custody are handled as separate legal matters, though both go through probate court as follows:

• Your children will typically inherit your assets. As minors can’t legally manage property, the court appoints someone to oversee their inheritance until they reach the age of majority (18 or 21 years) depending on the state. The guardian of the person (who raises your child) can be different from the guardian of the estate (who manages inherited assets). 
• Courts sometimes split the above roles when one person is better suited to provide daily care while another has stronger financial management skills.

How does the distribution of property happen when you die intestate?

In the absence of a will, state law directs the distribution of property through the oversight of a probate court after your death as follows:

• Some states pass all assets to a current spouse, regardless of the existence of children. Others split assets between the spouse and children, or other relatives.
• If the deceased is unmarried, the state might split the property between the children and living parents or siblings. The result depends entirely on the state and the family situation.
• If you no longer have (or never had) parental rights over a child, or if you have a stepchild, they can’t receive your wealth through intestacy. If you have a will, you are free to bequeath wealth to that child.

What property automatically passes to your beneficiaries

You probably own assets that will pass to those you designate regardless of whether you have a will. 

• Any wealth you put into a living trust
• Real estate owned jointly with rights of survivorship 
• Life insurance, retirement accounts, stock portfolios, or other financial accounts with designated beneficiaries 

Guardianship of a child

If you are divorced, your former spouse (the children's other biological parent) will typically receive custody in the event of your passing. As biological parents have priority custody rights over anyone else, the probate court will almost always place children with their surviving biological parent first.

The court must name a guardian for your underage children if:

• You were the sole living biological parent
• The other parent is missing or can't be located
• The other parent is deemed unfit

In these situations, a willing stepparent or other responsible adult may be appointed to the role.

Not every state automatically places a child with a relative if there is no biological parent, and the following may take place:

• Family law places its priority on the child's best interest. 
• If the court determines that the children's grandparents are not in the best position to care for your children, it might award custody to a non-relative. 
• Some states give weight to the request of the children, especially if they are teenagers.
• In some cases, when the other biological parent steps forward to take custody, a relative or a responsible friend can petition the court to overrule the surviving parent's rights. This could succeed in averting the placement of your children with an unfit parent, but a battle between these parties might ensue.

The likelihood of sparing your children from this stressful situation increases significantly if you designate the guardian of your choice in a valid will. 

What is the priority order for child custody after both parents die?

When both biological parents are deceased, courts follow a general hierarchy to determine who should care for the children. If a valid will names a guardian, that person receives first consideration, though the court still evaluates whether the designation serves the child's best interests.

Without a will, courts typically consider potential guardians in this order:

• Grandparents and close blood relatives. Grandparents and other close blood relatives such as siblings of the deceased parents, aunts, uncles, and adult cousins often receive priority consideration.
• Stepparents with established relationships. A stepparent who has developed a meaningful bond with the child may petition for custody.
• Godparents or close family friends. Adults who have played a significant role in the child's life can be considered for this role.
• Foster care. If no suitable guardian comes forward or qualifies, the child may enter a foster care system with over 328,000 children.

While most states give preference to relatives, this preference is not automatic. The best interest standard still applies, meaning a non-relative who can provide a more stable, loving environment may be chosen over a blood relative. This is why designating your preferred guardian in a will and explaining your reasoning carries significant weight in the court's decision.

What happens when both parents die without a will

When both parents die without a will, the probate court must initiate guardianship proceedings to determine who will raise the children. This process begins when someone files a petition with the court. It typically includes: 

• A family member
• Child welfare agency
• An interested party

Because neither parent left instructions, the judge has full discretion to appoint a guardian based solely on the child's best interests.

The timeline from the parents' deaths to a permanent guardian appointment typically ranges from several weeks to several months. It depends on the complexity of the case and whether any disputes arise. During this interim period, a temporary guardian is often appointed to provide immediate care for the children. This temporary arrangement might be: 

• A close relative
• A family friend who steps forward
• A foster care placement until the court reaches a final decision

Without documented parental preferences, the process becomes more vulnerable to family disputes. Multiple relatives may petition for guardianship simultaneously, each believing they're best suited to raise the children.

These contested cases can extend the court proceedings significantly, creating prolonged uncertainty for the children during an already traumatic time.

Without a will, if something happens to both of you, whether in the same or separate incidents, your children's future would be decided entirely by a judge who never knew either of you or your wishes for your kids. With over 4% of minor children having lost at least one parent, this scenario underscores why having a will matters even if you share custody with your former spouse. 

How can a child's preference help a judge in deciding custody?

Your kids may share their preference with the judge in deciding custody. Each state has different rules regarding how old a child should be to express their choices, but typically the age is 12 or 13. If your kids are old enough to express their preference, the court considers their choice.

What financial support options and benefits are available for children after their parents die?

Children who lose a parent may be eligible for Social Security benefits, which can provide meaningful financial support during a difficult transition. 

• If your child loses one parent, they can typically receive up to 75% of that parent's basic Social Security benefit amount. 
• When both parents are deceased, the child may receive benefits based on both parents' records, up to a family maximum of 150% to 180% of the higher-earning parent's benefit.

To qualify for survivor benefits, the following is required:

• The deceased parent must have worked and paid Social Security taxes for a certain period. 
• Children remain eligible for these benefits until age 18, or until age 19 if they're still attending high school full-time. 
• A surviving parent, guardian, or representative must apply for these benefits on behalf of the child through the Social Security Administration.

Beyond Social Security, children may also receive proceeds from life insurance policies where they're named as beneficiaries. However, minor children can’t directly receive large insurance payouts. Instead, the guardian or a court-appointed custodian manages these funds until the child reaches the age of majority. A trust can provide more control over how and when children access inherited assets.

Financial support considerations often play a role in guardianship decisions. Courts want to ensure that prospective guardians can provide for the children's needs, and understanding available benefits helps everyone involved plan for the child's long-term well-being.

Jennifer Kiesewetter, J.D., contributed to this article.