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

If you pass away and you're divorced, a will protects your children and your wishes. Without one, the court may decide who raises and cares for your kids in the event of your untimely death. If you don't create an estate planning document, you have less control, as your loved ones might not get be as protected or receive what you want them to have.

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. These documents are often called a “last will and testament." After your death, the court carries out your final wishes.

Establishing one 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."

Further, you need to create a written document outlining your final wishes. If your children are under the age of 18, you can also designate a guardian for them. Finally, you must sign your will and have two witnesses sign the legal instrument as well. If you have a significant amount of assets, you may want to talk to an experienced estate planning attorney.

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, it won't award guardianship to anyone else. It will only award guardianship if the second biological parent dies.

Further, the judge considers the surviving parent's relationship with your kids. For example, if they have a history of alcohol or drug abuse, then the judge may deny the parent to have custody. Additionally, if you remarried after your divorce, and your new spouse adopted your children, then that person would retain custody of them after your death.

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.

Distribution of Property When You Die

In the absence of a will, state law directs the distribution of property through the oversight of a probate court after your death. Some states pass all assets to a current spouse, regardless of the existence of children, while others split assets between the spouse and children. 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 cannot receive your wealth through intestacy. If you have a will, you are free to bequeath wealth to that child.

Property That Automatically Passes to Your Beneficiaries

You probably own assets that will pass to those you designate regardless of whether you have a will. Property that bypasses probate and goes directly to your designated beneficiaries includes any wealth you put into a living trust.

Real estate owned jointly with rights of survivorship is a common form of property that passes directly to your survivor and does not go through probate. You might hold life insurance, retirement accounts, stock portfolios, or other financial accounts with designated beneficiaries. These all pass to the beneficiaries you name without going through probate.

Guardianship of a Child

If you are divorced from your children's biological parent, then your former spouse will receive custody of the children in the event of your passing. A biological parent has the right to custody of the children prior to anyone else's claim, so the probate court is likely to place children with their other biological parent. But if you were your children's sole living biological parent when you died, or if their other parent is missing or unfit, the court must name a guardian for your underage children. Perhaps your children have a willing stepparent the court can appoint to the role.

Not every state automatically places a child with a relative if there is no biological parent. Family law places its priority on the child's best interest. Should the court determine 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, the other biological parent steps forward to take custody, but another relative or a responsible friend can petition the court to overrule the surviving parent's rights in order to avert the placement of your children with an unfit parent. 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—such as that concerned relative or responsible friend—in a valid will.

Child's Preference

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 twelve or thirteen. If your kids are old enough to express their preference, the court considers their choice.

If you're divorced, you may want to execute a will to ensure that your wishes for your kids are heard after your death. Being divorced with children is hard enough. Taking the time to prepare for your untimely death could lessen your anxiety and protect your children.