The general rule is that children born during the marriage are considered the biological children of the two parents. As such, if one parent were to pass away while the child was still a minor, the other party would be considered the custodial parent. The issue becomes, however, for children born out-of-wedlock. For mothers, they will always be considered the biological parent so long as they gave birth to the child, whether they were married or not married. The same is not true for the biological father.
When a child is born to two unmarried parents, the father is usually given the option to sign a Voluntary Acknowledgment of Paternity (VAP) that acknowledges that he is the father of the child and waives all rights to a paternity test. This VAP in essence is a final judgment on parentage, granting the father all of the rights as if the child were born to him through marriage. As such, if the mother were to pass away while the child was still a minor, the father with a signed VAP would be considered the custodial parent. The same would be true for any father who wishes to acknowledge paternity, whether he was the actual biological father or not.
For fathers who did not sign the VAP, and the biological mother has passed away, the father is not considered the legal father under the law. In this situation, the father must immediately take steps to establish paternity in court to protect his legal standing as a father. Under this situation, the mother’s family would have more rights over this child than this father, and the father risks that the children will be taken as wards of the state until his paternity is established.
For mothers who wish to establish the paternity of a father who is deceased, she could ask the courts to preserve the father’s DNA sample for purposes of establishing the paternity of the child. These steps are last-resort scenarios in the event the unthinkable should happen and paternity is not established prior to the death of one of the parents. It is best to protect yourself against such a scenario by talking to a lawyer and confirming that you have all of the correct paperwork that would protect you and your children in the event of death.