Child Custody and Your Estate Planning
Key Points
  • After divorce, make sure you update your estate planning documents. You may have had your spouse as the executor of your estate, or things may have changed and your spouse would not be the best option for guardianship, should something happen to you. Review your estate planning documents and make sure everything is up-to-date.

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.

Suggested Reading
Divorce & Money: How to Make the Best Financial Decisions
This book is a practical guide to evaluating assets during divorce. It explains how to determine the real value of marital property including houses, businesses, retirement plans and investments and how to negotiate a settlement that is fair to both sides.

Authors: Violet Woodhouse & Dale Fetherling

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DYING INTESTATE -- When a person dies without a last will, his or her property is divided under the laws intestate succession of the state of residence. These laws generally favor the surviving spouse, children and grandchildren, and then move back to grandparents and siblings.

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