Posted on June 24, 2023

Child Custody After The Death Of A Parent In Illinois

A Judgment of Dissolution, a Marital Settlement Agreement and an Allocation of Parenting Time and Parental Responsibilities all determine how two formerly married people (or unmarried parents) must conduct themselves in relation to each other post-divorce (or post-judgment of paternity).

What happens if one of the parents dies after an Illinois divorce? What happens to all of those obligations the dead spouse entered into when the parties divorced? Who gets custody of a child after a parent dies in Illinois?

Custody Of A Child After The Death Of A Parent In Illinois

If a parent dies in Illinois, the other surviving parent has the right to have complete control over the children.

“There shall be a rebuttable presumption that a parent of a minor is willing and able to make and carry out day-to-day child care decisions concerning the minor, but the presumption may be rebutted by a preponderance of the evidence.” 755 ILCS 5/11-5(b)(ii)

If both parents are dead, the last parent to die can determine who will be the children’s guardian.

“A parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, may designate in any writing, including a will, a person qualified to act under Section 11-3 to be appointed as guardian of the person or estate, or both, of an unmarried minor.” 755 ILCS 5/11-5(a-1)

The designation of a child’s guardian after the death of a parent must be done in a very specific manner.

“A parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, or a guardian or a standby guardian of an unmarried minor or of a child likely to be born may designate in any writing, including a will, a person qualified to act under Section 11-3 to be appointed as successor guardian of the minor’s person or estate, or both. The designation must be witnessed by 2 or more credible witnesses at least 18 years of age, neither of whom is the person designated as the guardian. The designation may be proved by any competent evidence.” 755 ILCS 5/11-5(a-1)

Section 11-3 of Illinois’ Probate Act says only certain people can be guardians.

“A person is qualified to act as guardian of the person and as guardian of the estate if the court finds that the proposed guardian is capable of providing an active and suitable program of guardianship for the minor and that the proposed guardian:(1) has attained the age of 18 years;(2) is a resident of the United States;(3) is not of unsound mind;(4) is not an adjudged person with a disability as defined in this Act; and(5) has not been convicted of a felony, unless the court finds appointment of the person convicted of a felony to be in the minor’s best interests, and as part of the best interest determination, the court has considered the nature of the offense, the date of offense, and the evidence of the proposed guardian’s rehabilitation. No person shall be appointed who has been convicted of a felony involving harm or threat to a child, including a felony sexual offense.” 755 ILCS 5/11-3(a)

If the designation of a guardian for a child was done properly, that designation will be deemed legitimate.

“If the designation is executed and attested in the same manner as a will, it shall have prima facie validity.” 755 ILCS 5/11-5(a-1)

Prima facie means “sufficient to establish a fact or raise a presumption unless disproved or rebutted.” Black’s Law Dictionary (11th ed. 2019)

A parent’s designation of a guardian (who is not the other parent) will be considered moot because “[t]he designation of a guardian or successor guardian does not affect the rights of the other parent in the minor.” 755 ILCS 5/11-5(a-1)

Grandparents, Step-parents And Other Adults’ Rights To A Child After A Parent’s Death In Illinois.

If the surviving parent has been absent from the children’s life, is in prison, or has any conviction for a sex crime, a grandparent or a step-parent can ask the court to deny the surviving parent custody.

“A proceeding for allocation of parental responsibilities with respect to a child is commenced in the court:

….when one of the parents is deceased, by a grandparent who is a parent or step-parent of a deceased parent, by filing a petition, if one or more of the following existed at the time of the parent’s death:(A) the surviving parent had been absent from the marital abode for more than one month without the spouse knowing his or her whereabouts;(B) the surviving parent was in State or federal custody; or(C) the surviving parent had:(i) received supervision for or been convicted of any violation of Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-1.70, 12C-5, 12C-10, 12C-35, 12C-40, 12C-45, 18-6, 19-6, or Article 12 of the Criminal Code of 1961 or the Criminal Code of 2012 directed towards the deceased parent or the child; or(ii) received supervision or been convicted of violating an order of protection entered under Section 217, 218, or 219 of the Illinois Domestic Violence Act of 1986 for the protection of the deceased parent or the child.” 750 ILCS 601.2(b)(5)

Natural parents have constitutional rights to their children. Parents are not obligated to allow anyone access to their children if that parent decides it is in the best interests of the children not to see other adult.

“Parents have the constitutionally protected latitude to raise their children as they decide, even if these decisions are perceived by some to be for arbitrary or wrong reasons. The presumption that parents act in their children’s best interest prevents the court from second guessing parents’ visitation decisions. Moreover, a fit parent’s constitutionally protected liberty interest to direct the care, custody, and control of his or her children mandates that parents—not judges—should be the ones to decide with whom their children will and will not associate.” Wickham v. Byrne, 769 NE 2d 1 – Ill: Supreme Court 2002

The Illinois statute allowing grandparents and step-parents to ask for time with a child is probably unconstitutional. Statutes that exist in favor of grandparents or step-parents have been deemed unconstitutional by the United States Supreme court. Such statutes “unconstitutionally infringes on the fundamental right of parents to rear their children.” Troxel v. Granville, 530 U.S. 57 (2000)

If a parent has “not been alleged to be unfit [it is[ presume that they are acting in the best interests of their children.” Lulay v. Lulay, 739 NE 2d 521 – Ill: Supreme Court 2000

If a parent does not want a third-party to have custody or even be around their child, that decision is deemed appropriate.

If a surviving parent is deemed NOT to be a fit parent, then a third party may be considered to be a guardian without being deemed unconstitutional. “By allowing a guardianship petition to proceed to a hearing on the merits over the wishes of a parent only when the parent has been established to be unwilling or unable to carry out day-to-day child-care decisions, the Probate Act respects the superior rights of parents while also insuring to protect the health, safety, and welfare of children.” In re RLS, 844 NE 2d 22 – Ill: Supreme Court 2006

If both parents are dead, close relatives can invoke a right to visit a child.

“Whenever both parents of a minor are deceased, visitation rights shall be granted to the grandparents of the minor who are the parents of the minor’s legal parents unless it is shown that such visitation would be detrimental to the best interests and welfare of the minor. In the discretion of the court, reasonable visitation rights may be granted to any other relative of the minor or other person having an interest in the welfare of the child….For the purpose of this Section, “close relative” shall include, but not be limited to, a grandparent, aunt, uncle, first cousin, or adult brother or sister.” 755 ILCS 5/11-7.1(a)

If a court denies a grandparent visitation rights after the death of a child, the court must explain why.

“An order denying visitation rights to grandparents of the minor shall be in writing and shall state the reasons for denial.” 755 ILCS 5/11-7.1(a)

The grandparent who is denied visitation rights can immediately appeal that order.

“An order denying visitation rights is a final order for purposes of appeal.” 755 ILCS 5/11-7.1(a)

Obligations Of A Parent After The Parent’s Death In Illinois

Typically, death of a party in a civil lawsuit stops everything.

“At common law, a cause of action [in a civil action] did not survive the death.” Tunnell v. Edwardsville Intelligencer, 252 NE 2d 538 – Ill: Supreme Court 1969

But if a judgment of dissolution of marriage has been entered, actions under the divorce or parentage case are not automatically dismissed.

“[T]here is no abatement upon the death of a party if the litigation has progressed to a point at which the merits of plaintiff’s allegations have been affirmatively determined.” Tunnell v. Edwardsville Intelligencer, 252 NE 2d 538 – Ill: Supreme Court 1969

Even if all the issues in the divorce were not resolved, the judgment remains enforceable and the reserved issues can still be decided by an Illinois divorce court.

“The death of a party subsequent to entry of a judgment for dissolution but before judgment on reserved issues shall not abate the proceedings.” 750 ILCS 5/401(b).

Existing orders for child support remain legitimate after the death of a parent.

“An existing obligation to pay for support or educational expenses, or both, is not terminated by the death of a parent. When a parent obligated to pay support or educational expenses, or both, dies, the amount of support or educational expenses, or both, may be enforced, modified, revoked or commuted to a lump sum payment, as equity may require, and that determination may be provided for at the time of the dissolution of the marriage or thereafter.” 750 ILCS 5/510(d)

Enforcing or even initially asking for child support from a deceased parent shall be done against the estate of the deceased parent.

“The right to petition for support or educational expenses, or both, under Sections 505, 513, and 513.5 is not extinguished by the death of a parent. Upon a petition filed before or after a parent’s death, the court may award sums of money out of the decedent’s estate for the child’s support or educational expenses, or both, as equity may require.” 750 ILCS 5/510(e)

Any child support claims against a deceased parent’s estate must be made quickly. Claims against an estate are “barred 2 years after decedent’s death, whether or not letters of office are issued upon the estate of the decedent.” 755 ILCS 5/18-12(a),(b)

“The time within which a claim may be filed against the estate of a decedent under Sections 505 and 513 and subsection (d) and this subsection shall be governed by the provisions of the Probate Act of 1975, as a barrable, noncontingent claim.” 750 ILCS 5/510(e)

A disabled child can be awarded child support from a deceased parent’s estate in order to maintain the disabled child after the age of 18. “The court may award sums of money out…the estate of a deceased parent, as equity may require, for the support of a child of the parties who has attained majority when the child is mentally or physically disabled and not otherwise emancipated.” 750 ILCS 5/513.5(a)

Normally, only a parent can petition a court for help with a child’s college expenses. The death of a parent triggers the right of a child to petition for support for college expenses.

“In the event of the death or legal disability of a party who would have the right to file a petition for contribution, the child of the party may file a petition for contribution.” 750 ILCS 5/513(i)

The death of a parent is truly tragic. Fighting over children’s custody in the wake of such a tragedy is no easy feat. Contact my Chicago, Illinois family law firm to discuss your next steps with an experienced Illinois divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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