Who Gets Custody if You Pass Away?

While the subject may be difficult to discuss, parents of minor children need to consider who will be their child’s guardian if they pass away.

Surviving Parent

If one parent is deceased, the surviving parent is entitled to custody provided they are a suitable person that can be trusted with their child’s care, control, and education. So, if a surviving parent did not have primary custody of the child before the custodial parent’s death, the surviving parent will receive custody of the child if there is no showing that the surviving parent is unsuitable. That said, if the surviving parent had required supervision during visitation, or the surviving parent’s visitation privileges with the minor had been suspended at the time of the custodial parent’s death, the minor’s surviving parent does not have the right to custody of the minor without a legal proceeding.

Other Options

In short, Indiana will give custody to the surviving parent. What if you don’t want this? Well, if the custodial parent is remarried, it may be prudent to consider step-parent adoption. Click here to read our post on step-parent adoption. If the child is adopted and the surviving biological parent’s rights are terminated, the surviving step-parent will have custody of the child.

It is also a good idea to make a will in the event both parents pass away. As part of your estate plan, you can specifically name a legal guardian for your child if you and your spouse or the child’s other parent have both passed away. If you do not name a guardian, the state will select one for you.

If you are interested in discussing your options for providing a guardian in the event you pass away, contact McNeelyLaw today. Call us at 317-825-5110 to talk to an experienced attorney who can help you through this complicated discussion. We are conveniently located in Indianapolis and Shelbyville and can assist you throughout the state of Indiana.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.