For parents of young children, perhaps the most difficult and emotional part of making an estate plan is deciding who to nominate as guardian of your children. This person will step in and care for your children in the event that your kids are left without parents before they reach adulthood.
It can be hard enough for married parents to come to an agreement on this incredibly important topic; but when you’re divorced from your child’s other parent, coming to an agreement can be all the more difficult.
So, how important is it for both parents to agree on this issue, and what happens if you don’t agree?
As a practical matter, as with any major decision concerning your children, the best case scenario is for both parents to be united in their plans for their children’s future. This eliminates the potential for uncertainty confusion and promotes a sense of security for everyone involved.
However, it’s not always possible for parents to come to an agreement on this issue. When mom and dad can’t agree, whose choice wins out? Generally, if both parents pass away while their children are still minors, it’s the parent who dies second whose wishes will be honored. Here’s how it usually works:
Let’s say the custodial parent passes away first. Unless the surviving parent has been found to be unfit, the children will go to the surviving parent. Then, if the surviving parent also passes away while the children are still minors, his or her Will will be probated, and the guardian he or she has chosen will generally be made responsible for the care of the children.
It’s essential that both you and your former spouse have an estate plan nominating a guardian for your children. Without a plan, in the event that both of you pass away, a judge will be the one to choose who serves as guardian.
No matter your circumstances, your estate planning attorney can help you structure your estate plan so that it meets the specific needs of you and your family.
Stephen A. Mendel, Estate Planning Attorney
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