Whether the child is a baby, teen, young adult or adult – ‘logic’ dictates that parents “should” precede their children in death.
Even our English language has no word for such bereavement. We have the terms widow, widower, orphan – but no word for a parent who has lost a child, whether to illness, accident, suicide, overdose, murder, natural disaster, sudden infant death, medical error or other catastrophe.
Estate Planning is one area of the law that contemplates the ‘what ifs’ of life and also the ‘unthinkable’ of the death of a child, a death out of order.
In legal parlance – heir predeceases testator - when an heir/beneficiary (the child) dies before (predeceases) the testator (parent).
In some circumstances, if there were no alternative beneficiaries named in a will, the gift may be considered to have ‘lapsed’.
In other circumstances, it could pass to a residuary beneficiary named in the will…or state law may determine who inherits.
There is also consideration of the Uniform Probate Code that provides a five day survivorship period.
In other words, there can be complicated legal survivorship requirements/issues (some defined by state law) and a discussion of all the individual possibilities is beyond the scope of this article.
The death of a child in later years is no less tragic or painful. According to The New York Times article (The New Old Age) - “A Child’s Death Brings Trauma That Doesn’t Go Away” by Paula Span (September 29, 2017) One study showed that 11.5% of people over 50 have lost a child… The term is late-life loss”.
“We’d see a centenarian whose 80-year-old daughter had died,” said Kathrin Boerner, a gerontologist at the University of Massachusetts Boston who studies 'the oldest of the old.' Boerner stated: “With increased longevity, the likelihood that a child dies before you increases.”
Not only is there pain, grief and trauma when your child dies, but …”in a country that relies so heavily on family caregiving, an adult child’s loss clearly threatens to undermine the support a parent may need..”
Following a death, it is advisable to seek the advice of an attorney who has both the knowledge and expertise about survivorship and probate.
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