Skip to main content
Find a Lawyer
Please enter a legal issue and/or a location
Begin typing to search, use arrow keys to navigate, use enter to select

Find a Lawyer

More Options

What Happens to Young Children When Both Parents Die?

By Catherine Hodder, Esq. | Reviewed by Joseph Fawbush, Esq. | Last updated on

In February of 2024, Stacy Wakefield, wife of former Boston Red Sox pitcher Tim Wakefield, died within five months of her husband. They left behind two children. When both parents die with minor children, it’s unimaginable, devastating, and rare — but it does happen.

In this case, Wakefield’s children, born in 2004 and 2005, are just over 18 – , the age of majority. As adults, in the eyes of the law, they can inherit from their parents and do not need a court to appoint guardians for them.

However, the tragic deaths of both Wakefields from cancer highlight what parents must consider if they have children under the age of 18.

If One Parent Dies, Leaving Minor Children Behind

If you have a child and you die, your child’s other adoptive or biological parent will most likely have custody of the child. This is true even in divorce or if you never married. However, if your child’s other parent terminated their parental rights or a court did it for them, they would not get custody of the child. Things can get tricky if, for example, you are remarried, and your spouse treats your child as their own. Unless your spouse has legally adopted them, the court may favor your child’s other parent over the stepparent as the legal guardian.

If Both Parents Die, Leaving Minor Children Behind

If minor children don’t have a living parent, a court must appoint a guardian for them. Usually, that could be a family member or close friend. A guardian is responsible for the children’s education, maintenance, healthcare, and overall well-being.

A court will seriously consider a guardian you name in your will, provided you make a will naming them as the child’s guardian. The court wants to honor the parents’ wishes but will act in the best interest of the child. If your choice of guardian is unfit to serve (for example, they are incarcerated or have a drug problem), the court will look to someone else to have child custody. Child custody battles can add further trauma to your children. Although the court focuses on the well-being of the child, the court may choose someone you do not think is the best guardian (i.e.g., your mother-in-law).

In the worst-case scenario, there is no suitable person to serve as your child’s guardian and they may need to go into the foster care system.

How To Protect Your Young Children

You know your children, their needs, and your family dynamics. Therefore, you know who can serve as their best guardian. It could be a family member, loved one, or family friend. You must create a last will and testament, a legal document, to express your wishes. In your will, you name a personal representative, beneficiaries, and who you want as your child’s guardian. It is a good idea also to name a backup guardian in case your first choice is unable or unwilling to serve. In the event of your death, the probate court looks at your will for your suggestions.

If the parents have wills naming different guardians, the court pays attention to the last surviving parent’s will since they are the custodial parent at that time.

It may also be wise to consider a life insurance policy. After a parent’s death, the policy can provide funds for the child’s life.

How To Choose a Guardian for Your Children

The parents of a child should think about their child’s needs and the potential guardian’s strengths and weaknesses. Some things to consider:

  • Do they share the same values?
  • Can they handle the responsibility?
  • Are they mentally and physically healthy enough to be a guardian?
  • Are your kids comfortable with the guardian?

If you have difficulty figuring out who is the best guardian, an estate planning lawyer can help.

Consider a Testamentary Trust

Just because your children are 18 does not necessarily mean they can manage an inheritance. Consider leaving money to your young children in a testamentary trust where someone can manage it for them. A testamentary trust is a provision in your will where you name a trustee to handle your child’s inheritance until they are ready. The trustee provides funds for your child’s support, education, healthcare, and maintenance until they reach a certain age you specify. This may also be helpful if your preferred guardian can’t manage money well. The trustee would oversee the expenses and pay for the child’s care while the appointed guardian cares for your child.

Don’t Wait Until It’s Too Late

Making a will is critical to estate planning, especially for naming guardians for your children. Also, consider a power of attorney and advance medical directive for a complete estate plan. With these documents, you can protect your family if you are incapacitated during your life.

Was this helpful?

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

Or contact an attorney near you:
Copied to clipboard