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When a Custodial Parent of Minor Children Dies…

There is a presumption under Mississippi law that the best interests of children will best be preserved by remaining with the surviving parent unless:

  • the surviving parent abandoned the children,
  • the conduct of the surviving parent is so immoral as to be detrimental to the children, or
  • the surviving parent is unfit mentally or otherwise to have custody of the children.

Unless a family member or other third party comes forward, petitions the court, and makes the requisite showing, the surviving parent will usually become the custodial parent. Even so, in all cases involving children, we recommend that our clients have a Last Will and Testament naming his or her preferred custodian of the minor children in the event of the client's death. That way, if the surviving parent is not fit, the court will have clear direction about whom the custodial parent preferred. A Last Will and Testament may also be used to direct who will manage your children's inheritance or life insurance benefits in the event of your death. Many parents do not trust their ex-spouses with that duty.

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