Child Custody and Your Estate Planning
Under most states laws, upon your death custody of your minor children would normally pass to the children’s surviving parent (in most cases, the person you are now in the process of divorcing). Although the law clearly gives the surviving parent priority to be guardian for the minor children, the final decision is always based upon the best interests of the child. In certain cases, the surviving parent clearly is not an appropriate guardian for the minor children. For instance, the surviving parent may be addicted to drugs or alcohol, may be physically or mentally abusive, or may have other psychological or physical problems which prevent them from being a good parent. In those cases, you may want to provide for an alternate guardian in your will and clearly spell out your reasons why you believe your estranged spouse would not be an appropriate guardian for your minor children. Although the court is not obligated to honor your request, the court would certainly consider your wishes in determining what is in the best interests of the child. Because the surviving parent normally has preference as guardian of the minor children, if you want to attempt to name someone else, it is imperative that you seek the assistance of a qualified estate planning attorney to help you.
Resources & Tools
DYING INTESTATE -- A failure to make a will can cost loved ones money (in taxes that can be avoided). And at the least, property distribution under the laws of intestacy slows the settlement of an estate. For most couples, a mirror-image will (all to him from her, all to her from him) is easy and inexpensive.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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