Attorney, Cordell & Cordell
Divorce is emotionally devastating on its own. Sadly enough, some parents have to deal with the death of a child on top of that. The death of a child is always difficult to deal with and bringing warring ex-spouses together who will never see eye-to-eye only exacerbates the problem.
I hear from fathers who would like to get from their ex-wife some of their child’s belongings, such as pictures, trophies, childhood toys, etc. Some dads have requested being given half of the child’s remains after cremation.
This situation frequently brings up legal questions of a parent’s rights.
In most states, these matters are governed by probate/estate law rather than domestic relations law.
A parent’s rights under probate law are normally dependent on whether or not they are still the “next-of-kin” or closest relative under state law. In a situation where a child dies unmarried, without children, both parents, even if divorced, normally serve as the next-of-kin.
Under probate law, it is normally the next-of-kin who has the right to make decisions about, and have possession of, the remains of the deceased. Unfortunately, many state laws do not spell out statutorily whose rights trump if there are multiple next-of-kins who cannot agree, instead relying on the probate court to make decisions based on the circumstances.
If a child dies without a will, and is unmarried and without children, each parent normally has a right to 50% of the child’s personal property. If the child dies with a significant enough amount of property, the child’s estate may have to go through the probate court for division.
In this case, an Executor is normally appointed to divide up the property according to state law. If the people entitled to part of the property disagree about who gets what, the Executor may have the power to make the final decision.
If the child’s estate is small enough that probate is unnecessary to divide the property, the next-of-kin may be left to divide the property on his/her own. In any case, disputes about property will most likely require decision by the probate court in some manner, but the courts may be reluctant to get involved in disputes over property with little monetary value.
Rachel A. Brucks is a Staff Attorney in the Fort Worth, Texas office of Cordell & Cordell where she practices domestic relations exclusively. Ms. Brucks is licensed in the state of Texas. Ms. Brucks received her Bachelors degrees in English and Political Science from the University of Texas at Arlington. She received her Masters in Literature and Gender Studies from Texas State University, San Marcos; and received her Juris Doctor from Southern Methodists University, Dallas.