What Happens to My Kids if I Die Without a Will & I Am Divorced?

By Lee Hall, J.D.

What Happens to My Kids if I Die Without a Will & I Am Divorced?

By Lee Hall, J.D.

If you are a parent, you have important reasons to prepare a will. Your last will and testament provides legal guidance, ensuring your children receive what you want them to have in the event of your own untimely passing. If you die without a will, the distribution of your property will likely be a lengthier and more difficult process than you would have preferred.

Kid looking appreciatively out at sunset while perched on father's shoulders and stretching arms out as long as they go

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.

How Assets Will Be Distributed

State law sets out provisions for the transfer of your property should you die intestate, or without a will. The probate court distributes your property to your next of kin, with the spouse's claim generally considered first, just ahead of any children. If you're divorced, the first in line is your new spouse. If you have no spouse when you pass, the children normally receive your property.

In the case of minor children, the probate court appoints a conservator to oversee the management of the assets that pass to your children until they come of age. Your ex-spouse is the likely choice in this scenario.

You undoubtedly have specific opinions about what should happen to your children and your assets if you die unexpectedly, so it's in your and your children's best interests for you to detail them in a will.

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.