My Ex-Wife Is Deceased: Who Gets Custody of the Children?

By Travis Gray, J.D.

My Ex-Wife Is Deceased: Who Gets Custody of the Children?

By Travis Gray, J.D.

When the mother of your children and your former spouse dies unexpectedly, it can turn your children's custody situation upside down. If your former spouse had primary physical custody, a court will have to make changes to the custody arrangement. And much like when with the death of a parent, the death of your former spouse can lead to legal conflict. Depending on the state you live in, custody may fall to you by default. But in other jurisdictions, the court may consider your ex-spouse's final wishes or even the preference of your children.

Father leaning over his children, who are sitting at a kitchen table

Custody Awarded to the Surviving Parent

If you were able to obtain primary or joint physical custody of your child during your divorce proceedings, there will be little immediate disruption. In times like these, the benefits of obtaining a favorable outcome in your divorce case become obvious.

However, if the mother of your children had primary or sole custody of your children at the time of her death, you may immediately become the custodial parent depending on the laws of your state. For example, in California the noncustodial parent is granted custody automatically upon the death of the custodial parent. But that doesn't mean custody in that circumstance is final. The courts will always act in the best interests of the children, and it is possible that other parties like the children's grandparents could petition for custody.

Even if your state doesn't grant custody to you automatically, it is common for custody to go to the surviving spouse. There are, however, exceptions.

Some situations allow the court to award custody to someone other than the surviving parent. Two of the most common situations involve your ex-wife's final wishes in her last will and testament, and the preference of your children on where they live.

Final Wishes of Your Ex-Wife

A last will and testament is used for more than just distributing your property after you are gone. A will can also be used by your ex-wife to express where she wanted her children to go upon her death. In this regard, a will isn't binding given that children aren't property to be handed back and forth. But the court will often consider the wishes of a deceased parent.

If the court ultimately grants custody to someone other than you, it won't affect the parental rights you already enjoy. So long as your rights have not been terminated, you will have the right to petition for visitation with the party who is granted primary custody of your children.

The Preference of Your Children

In some cases, the court will also take into consideration the wishes of your children. While small children are typically not given the option, some courts will allow older children to have a say in their custody arrangement. Whether an older child gets a say in where they stay varies from one state to another. Some courts will give little credence to an older child's opinion, while many judges will put a great deal of weight on that child's preference for their new guardian.

As is always the case with child custody issues, the courts will consider the best interests of your children before they make the final determination on new custody arrangements.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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