Who Gets Custody of the Children if Both Parents Die?

Losing both parents is an unimaginable tragedy for any child. In such unfortunate circumstances, questions about who will assume custody of the children become critically important. 

This article aims to provide a comprehensive understanding of the complex issue of child custody when both parents pass away. 

We will explore the legal framework, factors influencing custody decisions, and the importance of proper estate planning. 

Who Gets Custody of the Children if Both Parents Died When The Parents Had a Will?

If both parents die and they have a will, the custody of the children will depend on the provisions outlined in the will. 

Typically, parents can express their preferences for the guardianship of their children in their wills, specifying who they would like to assume custody and care for their children.

Tim’s Legal Tip: It’s important to understand that the court will have the final say in determining the custody of the children, and they will consider the children’s best interests when making their decision. 

While the preferences expressed in the will are usually given significant weight, they are not necessarily binding on the court.

The court will consider factors such as the children’s existing relationship with potential guardians, their age, their emotional and physical well-being, and the suitability of the proposed guardians in determining custody. 

The court may also consider any objections or concerns raised by other family members or interested parties.

If the parents did not specify their preferences for guardianship in their will, or if the designated guardian is unable or unwilling to assume custody, the court will determine an appropriate guardian based on the abovementioned factors and the children’s best interests.

Who Gets Custody of the Children if Both Parents Died and There Was No Will?

If both parents die and there is no will specifying the guardianship of the children, the court will decide the custody based on the children’s best interests. 

The court will consider various factors to determine the most suitable guardian.

The court will prioritize the children’s well-being and stability when deciding. The court will consider factors such as the children’s existing relationship with family members or other individuals who may be interested in assuming guardianship. 

The court may also consider factors such as the physical and emotional needs of the children, their age, and any preferences expressed by the children themselves if they are old enough to provide input.

The court will thoroughly investigate the potential guardians, assessing their ability to provide a safe and nurturing environment for the children. This will involve interviews, home visits, background checks, and assessments of the prospective guardians’ financial and emotional stability.

What Happens If There Is a Dispute As To Who Should Have Custody of The Children? 

If there is a dispute regarding the custody of children after the death of both parents, the matter will be resolved through the court system.  

The specific procedures may vary depending on the jurisdiction, but generally, the following steps may be involved:

1. The Court Will Appoint a Guardian Ad Litem For The Children

In a custody dispute arising after the death of both parents, the court will appoint a guardian ad litem (GAL). The GAL is a neutral individual, often an attorney or a social worker, appointed by the court to represent the best interests of the children involved in the case.

The GAL plays a crucial role in the legal proceedings by gathering information, conducting investigations, and advocating for the children’s welfare. 

They interact with the parties involved, interview the children, and assess relevant factors to provide the court with a comprehensive understanding of the situation.

The GAL’s role is to provide an independent, unbiased perspective, focusing solely on what would be most beneficial for the children’s well-being. 

They assess various factors, such as the children’s relationships with the parties involved, their physical and emotional needs, their wishes if they are old enough to express them, and any other relevant considerations.

The GAL’s recommendations carry significant weight in the court’s decision-making process. While the GAL’s recommendations do not bind the court, they are considered an important factor in determining the custody arrangement. 

2. The Court Will Appoint A Temporary Guardian

The court will appoint a temporary guardian to make decisions and provide for the children while the custody dispute is litigated. 

This guardian takes on a temporary role until a permanent custody arrangement can be made. 

3. The Parties Will Be Allowed To Conduct Discovery

In a custody dispute following the death of both parents, the court will allow the parties to conduct discovery. 

Discovery is a legal procedure that allows each party involved in the dispute to gather relevant information and evidence from the other party or third parties involved in the case.

During the discovery process, the parties and their respective attorneys can use various methods to obtain information, such as:

  • Interrogatories: Written questions submitted to the opposing party, which they must answer under oath.
  • Requests for production of documents: Requests to produce specific documents, records, or other tangible items that are relevant to the case. This could include medical records, school records, or other documents related to the children’s well-being.
  • Depositions: Depositions are oral interviews conducted under oath, where a party or witness provides testimony that can be used as evidence in court.
  • Subpoenas: Legal orders issued to compel third parties, such as schools, doctors, or counselors, to provide relevant documents or testify as witnesses.

The purpose of discovery is to allow each party to obtain the necessary information to support their case, assess the validity of the opposing party’s claims, and prepare for court proceedings. 

Discovery helps ensure a fair and transparent process, allowing both sides to effectively present their arguments and evidence.

4. Mediation or Negotiation

 After the discovery is completed, it is common for the parties involved in the dispute may attempt to resolve the custody issue through mediation or negotiation. 

This involves discussing their concerns, interests, and potential solutions with the help of a neutral third party, such as a mediator. The goal is to reach a mutually agreed-upon custody arrangement without court intervention.

5. Court Proceedings

 If mediation or negotiation fails, the dispute will proceed to court. Each party will present their case, providing evidence, testimonies, and arguments to support their claim for custody. 

The court will evaluate the evidence, review the recommendation of the guardian ad litem and decide based on the children’s best interests.

When determining what is in the best interests of the children, the court will consider the following:

  • The children’s physical and emotional well-being.
  • The existing relationship between each party and the children. The court looks for strong bonds, mutual trust, and a history of positive interactions. The well-being and happiness of the children primarily depend on the quality of their relationship with the appointed guardian.
  • The children’s wishes as to who they want to live with, if they are old enough to express them.
  • The ability of each party to provide a stable and nurturing environment.
  • The suitability of each party’s home environment is evaluated to ensure it meets the children’s needs. Factors such as safety, adequate living space, and access to education and healthcare are considered. 
  • The emotional and financial stability of potential guardians. Stability in these areas ensures the children’s needs can be met adequately and provides a sense of security for their future.
  • Any other relevant circumstances that could impact the children’s welfare.

6. The Court’s Decision

Based on the evidence presented and the children’s best interests, the court will make a custody determination. The court’s decision will specify which party will have custody and may also establish visitation rights or any other necessary arrangements.


Q. Can the court overrule the deceased parents’ wishes for a guardian?

Yes, it is possible. While the court considers the parents’ preferences, the ultimate decision is based on the child’s best interests. If the court determines that the preferred guardian is not suitable or is not in the child’s best interests, the court will appoint an alternative guardian.

Q. Do grandparents automatically get custody of the children if both parents die?

No, grandparents do not automatically get custody. However, they are often considered potential custodians due to their close relationship with the children. The court will evaluate various factors to determine the children’s best interests.

Q. Can grandparents be awarded custody if both parents die?

Yes, grandparents can be considered for custody if they can provide a stable and nurturing environment for the child. The court will evaluate the grandparent’s ability to meet the child’s physical, emotional, and financial needs.

Q. Can the child express their preferences regarding custody?

In some cases, the court will consider the child’s preferences, especially if the child is of sufficient age and maturity. However, the child’s preference is not the sole determining factor; it is weighed along with other considerations in determining custody.

Q. Can the custody arrangements change over time?

Yes, custody arrangements can be modified if there is a significant change in circumstances or if it is determined that the current arrangements are no longer in the child’s best interests. However, any changes would require court approval.

Q. How can I ensure my children are cared for according to my wishes if both parents pass away?

A: Proper estate planning is crucial. By creating a comprehensive estate plan that includes naming guardians, establishing trusts, and having a clear will, you can ensure that your children are cared for according to your wishes.


Determining child custody when both parents die is a complex and emotionally charged issue. Courts prioritize the best interests of the child when making custody decisions. 

Parents need to engage in thorough estate planning, including naming guardians and creating wills, to ensure their children are protected and provided for in the event of their deaths. 

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Tim McDuffey is a practicing attorney in the State of Missouri. Tim is a licensed member of the Missouri Bar and Missouri Bar Association.

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