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Family Law

Separated parents – what will happen to my child if I die?

What will happen to my child if I die?

Thursday, June 4, 2020

A common concern amongst separated parents is that if anything were to happen to them, their child could be sent to live with a parent with whom they have had no contact or do not have a good relationship with.

Another concern is that their child may be forced to move away and will lose contact with their extended family and friends who’ve had an important role in their life.

If you do not consider your child’s other parent to be the most suitable person to look after your child in the event of your death, then it is important to address this now. Failure to do so could potentially be putting your child at risk of lengthy court battles, family disputes and potentially foster care.

Who will be responsible for my child if I die? 

This depends on who has parental responsibility for your child.

A mother automatically has parental responsibility for a child from birth.

A father usually has parental responsibility if he was married to the mother at the time the child was born and/or he was named on the birth certificate. If not he can apply for parental responsibility. It is therefore likely you will share parental responsibility with your child’s other biological parent even if you are separated.

If you share parental responsibility for your child, upon your death, the surviving parent automatically gets sole parental responsibility for your child. This will happen regardless of whether your child sees their other parent.

What if I do not consider the other parent would be the best person to look after my child? 

Irrespective of whether your child has a relationship with their other parent, if you share parental responsibility, upon your death the surviving parent usually gets sole parental responsibility.

If you think another person would be more suitable to look after your child, you can make your wishes known in your Will. The person you name will not be appointed as your child’s guardian but it may be taken into consideration in any subsequent court proceedings.

If you have a “Child Arrangements Order” that names you as the person your child lives with, then notwithstanding that you share parent responsibility with the other parent, you can appoint a guardian in your Will. The named Guardian will be appointed immediately after your death to look after your child. Your child will live with their Guardian rather than their other parent. 

The Guardian would share responsibility with the other parent. They will need to agree important decisions in your child’s life such as,

  • Where your child lives
  • Whether or not your child has medical treatment
  • How and where your child is educated
  • Whether your child can leave the country

What if I am the only person with PR for my child? 

If you are the only person with parental responsibility for your child, the court will appoint a guardian upon your death, unless you have appointed a guardian in your Will.

You can name a guardian for your child in your Will and they will be immediately appointed upon your death.

If you die before appointing a guardian, the courts will be left to decide who takes care of your children. This will usually be a close relative, but it may not necessarily be the person you would choose.

Make a will

By making a Will, this will give you the reassurance and peace of mind that if anything should happen to you then you know your children will be looked after and cared for by people you trust and love if you follow the advice given above and include the relevant provisions in your Will.

You can also make sure that the Guardians appointed do not suffer any financial burden as you could include a Letter of Wishes to go alongside your Will giving guidance for your Guardians and providing that the correct administrative provisions are in place then monies could be drawn down to help towards university fees, purchasing their first car et cetera.

Aside from the importance of thinking about who you would like to look after and care for your children when you are no longer here, by making a Will you can make sure your Estate is left to those you wish to benefit and not left to chance if you die without leaving a Will. If the current situation has taught us anything, it is that we just do not know what is around the corner and why not use this time wisely to get your affairs in order before it is too late.

To speak to one of our specialist solicitors about your own circumstances, please do not hesitate to contact us today by calling 0191 2328451 or if you prefer, you can email in the strictest of confidence.

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