One of the most important parts of an estate plan for a family with minor children is selecting the guardian to care for the children if both parents pass away. This decision can be stressful for intact families, and seemingly impossible for parents who are no longer together.
No matter which parent is in my office, they are inevitably going to ask me “Does it even matter if I choose a guardian? Won’t her other parent get custody anyway?” In most situations, yes, the other parent will be the natural guardian of the child. However, I still advise my clients to select a guardian and at least one alternate to serve in the event that both parents pass away.
There are a couple of reasons for this. One is, you never know what will happen. Your former spouse could predecease you and you want to be sure you’ve nominated someone. You could predecease your former spouse, but in the event that he or she passes away while your child is still a minor and there is no other document nominating a potential guardian, yours would be used by the court to determine what the parent’s intent was for their child.
Additionally, if you and your former spouse can agree on guardians to serve if neither parent is around, you can both make provisions to name that person, which again provides valuable guidance to the court.
“It doesn’t matter anyway” is an easy excuse to use to put off making a plan, but doesn’t your child deserve better than that?
This is important information. I help people and their attorneys with charitable aspects of estate planning and am always shocked by the number of people who don’t have plans. Add kids, and it is all the more shocking, even when divorced, as I am as well.