- 18 Jul 2024
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- 3 min read
If I pass away, who is responsible for my child/children?
During family proceedings, separated parents often ask, what happens to my children if I were to pass away, where will my children live and who can legally look after them. This is not something a parent wants to ever consider but it is important that parents plan for every eventuality and safeguard their children’s future.
What is parental responsibility?
If you have parental responsibility, then you have the legal rights and responsibilities to make important decisions for your children. This may include, choosing their school, GP or getting them vaccinated.
A biological mother automatically has parental responsibility. A father has parental responsibility if he is married to the mother at the time of the child’s birth or if he is named on the birth certificate.
If you would like to know more about your rights as a parent, then please consider our articles What are my Parental Rights? and What is parental responsibility and can it be removed?
What is a guardian and how do I appoint one?
A guardian is someone who you appoint in your Will to look after your children in the event of your death. It may be that during the relationship, the parents both appointed the same guardian in their respective Wills to care for their children, in the event that they both pass away. It may be that this is no longer suitable now the parents are separating.
If you would like to make or amend a Will and/or appoint someone as a guardian, then please contact our Private Client team who will be happy to provide you with some advice and draft/amend your Will in accordance with your wishes.
It is important to note, once you are divorced, your ex-spouse will no longer benefit from your estate if you pass away as on divorce they are treated as having passed away themselves. Unless of course, following divorce you prepare a new will that names your ex-spouse as a beneficiary.
What is a Child Arrangements Order?
A Child Arrangements Order regulates where the children will live now that the parents are separating and when the children will spend time with each parent.
If you are considering obtaining a Child Arrangements Order, please see our website for further information.
What is a Lives with Order and a Shared Lives with Order?
A ‘lives with’ order determines who the children should live with and is their primary carer. This could be either the mother or father. A ‘shared lives with’ order recognises that the children live with both parents. This does not mean that the children will spend 50% of their time with each parent.
What happened if I pass away and I have a Lives with Order?
If the parent who passes away has a ‘lives with order’ then the children are not automatically placed with the surviving parent who has parental responsibility. In fact, the guardian named in the deceased’s parents Will automatically obtains parental responsibility with the surviving parent, if they have parental responsibility.
The surviving parent could dispute the appointment of the guardian and/or make an urgent application to the court to determine where the child should live. These are not straightforward applications, and we suggest that you seek advice before making the application.
What happens if I pass away and I have Shared Lives with Order?
The children would be automatically placed with the surviving parent named in the Order.
What happens if I pass away without a Child Arrangements Order?
The children would be automatically placed with the surviving parent, providing they have parental responsibility.
If the parent passes away and there is no surviving parent with parental responsibility, then the Court would appoint a guardian.
Our Family team offer free initial consultations. If you require any advice about parental responsibility or Child Arrangement Orders then please get in touch on 0800 280 421 or fill out our form below.
