What Happens to My Minor Child if I Pass Away & I Am Divorced?

By Jennifer Kiesewetter, J.D.

What Happens to My Minor Child if I Pass Away & I Am Divorced?

By Jennifer Kiesewetter, J.D.

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.

Little girl with long, brown hair sitting on a couch looking at a blonde woman

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.

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.

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.