Preparing for the Death of a Custodial Parent Is Essential – Here’s Why

You’ve probably heard the quote: “Nothing is certain except for death and taxes.” Sure, we all know we’re going to die some day, but what many people don’t consider is how the unexpected death of a custodial parent could affect child custody, divorce and grandparents’ rights. If you’re concerned about custody of a child and the assets and benefits they will receive following a custodial parent’s death, it’s essential to be prepared.

At our law firm, we typically see issues regarding the death of a custodial parent play out in two scenarios. The first pertains to suits affecting the parent-child relationship, including grandparents’ rights, and the other involves issues that arise when a custodial parent dies during a divorce and child custody case.

In the suit affecting the parent-child relationship setting, you generally have a custodial and a non-custodial possessory conservator. By default, the non-custodial possessory conservator would naturally take over the rights of the deceased parent, unless there is a serious question that the surviving parent could be a danger to the child.

Grandparents must take legal steps to protect rights to access

When it comes to grandparents’ child custody rights, there are provisions in the Texas family code that allow the decedent’s parents some access to the grandchildren, pursuant to the death of their child. However, it’s essential that grandparents have orders in place affirming those rights. Otherwise, the parent who gains custody may be able to cut off the grandparents – and that side of the family – during an ongoing custody case.

This holds true even for grandparents who are the active custodial caretakers of a child. The presumption is that granting custody to the biological parent is in the child’s best interest. If you’re a grandparent who doesn’t have orders in place, that presumption is something you will likely need to overcome.

Death of a custodial parent during divorce presents other legal issues

While it may be morose, one of the first things we tell clients is, “Prepare to file for divorce as if you were dying.” This is especially true if you want to ensure your children become beneficiaries of your estate, retirement accounts and insurance policies you hold should you die.

It’s also important to review your will, insurance and other financial documents and update beneficiaries BEFORE you file for divorce. Once updates are complete, make sure your divorce attorney files an injunction that prohibits the changing of any wills in the midst of the divorce case.

We’ve seen divorce cases where husband A suddenly decides he doesn’t like wife B anymore, so he removes her (and possibly any children) as a beneficiary of the will in the heat of the divorce case. Then he dies, thereby giving over his interests to a third party via his wish. An injunction can help prevent that from happening.

Our Tarrant County law firm has also seen scenarios where a couple had a contentious divorce years ago and the other spouse ends up being the beneficiary of a life insurance policy. In one situation, the family of the deceased tried to argue that it wasn’t the intent of the deceased to have the former spouse receive those monies, but that argument didn’t hold up court because the beneficiary was never changed.

When you pass away, your estate will either go into intestate (dying without a will), or if you have a will, transfer from family court to probate court once the death certificate is issued. By making sure your will is in tact, beneficiaries are updated and the will can’t be changed during the divorce, you can minimize potential headaches and surprises for your family that may otherwise arise upon your death.

Include directives in your will regarding child custody

As noted above, the Texas family courts typically award child custody to the other parent when the custodial parent dies. If you’re in a situation where the other parent has had limited access to the child, has not been involved in the child’s life or may be a danger to the child, you can include directives in your will regarding whom you prefer to have custody of and access to the child instead.

Keep in mind, directives pertaining to the best interest of a child are merely suggestive on the court and not binding. However, it’s essential to take any steps necessary to protect your child upon your death. Your legal team can help you weigh the options.

Our Tarrant County child custody attorneys are here to help

While the death of a custodial parent is rare during divorce and child custody disputes, it can be catastrophic when it happens. If you live in Tarrant County and want to learn more about your options for protecting your child’s best interests upon your death, contact the experienced divorce and child custody attorneys at Sisemore Law Firm today.

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