Custody upon the death of a parent

The death of a parent raises the question of who will care for the child in the future. The law provides clear rules that differ depending on the custody situation. With a custody directive, parents can also record their wishes in advance.

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If a parent dies, under joint custody parental custody generally passes to the surviving parent alone (§ 1680 BGB). If the deceased had sole custody, the court examines whether custody is transferred to the other parent or whether a guardian is needed.

With a custody directive, parents can name who should become guardian in the event of death. The court takes this wish into account, provided it does not conflict with the child's welfare.

What you should do now

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1. Clarify the custody situation
Determine whether joint or sole custody existed.
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2. Inform the family court
If the deceased had sole custody, the court decides on the further custody.
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3. Submit the directive
Present an existing custody directive to the court.
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4. Safeguard the child's welfare
Ensure stable care for the child during the transition period.

How to spot the scam

Without a custody directive, it remains unclear who should become guardian.
The family court is not involved when the deceased had sole custody.
The child's welfare is lost sight of over questions of inheritance and dispute.

Frequently asked questions

Who gets custody when a parent dies?

Under joint custody, custody generally passes automatically to the surviving parent alone (§ 1680 BGB). If the deceased had sole custody, the family court decides whether custody passes to the other parent or a guardian is appointed.

What is a custody directive?

A written declaration by the parents stating who should care for the child and become guardian in the event of their death. The family court takes this wish into account as long as it does not conflict with the child's welfare. It provides certainty for the worst case.

Does a relative automatically get the child?

Not automatically. Without a surviving custodial parent, the court appoints a guardian, guided by the child's welfare and any custody directive. Kinship alone does not create a preferential right.

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General information for self-help, not legal advice (RDG). In case of a high loss or uncertainty: contact a consumer advice center or a lawyer.