Sometimes my estate planning clients are divorced with minor children and are not on friendly terms with their former spouses. These are four frequently-asked questions about choosing guardians which arise in this context: “Do I have to name my former spouse as a guardian?” “Can my new spouse be appointed guardian?” “What if I have a restraining order against my former spouse?” “If my former spouse is the custodian of our minor children, will s/he have access to our children’s money?” Here are some of the initial issues we discuss relating to these questions.
1. “Do I have to name my former spouse as a guardian?”
In the event of the death of a custodial parent, the surviving former spouse would automatically become the sole custodial parent, regardless of whether the former spouse is nominated as a guardian. The exception to this rule is if the former spouse is deceased, incarcerated, determined legally unfit, or if the former spouse’s parental rights were otherwise terminated or voluntarily relinquished. The surviving parent is just that, a parent, and while being a parent encompasses the rights and responsibilities that a guardian has, the surviving parent would be known as the minor child’s parent, and not as a guardian.
This does not mean that a client cannot or should not include guardian nominations in his or her Will. The language of the guardian nominations can be tailored to recognize the position of the former spouse within the progression of custodianship of the minor children, and can add contingent guardian nominees in the event the former spouse is or becomes unable or unwilling to assume custody and care of the minor children.
2. “Can my new spouse be guardian?”
The former spouse’s parental rights would supersede a guardian nomination of a client's new spouse, even if the children’s primary residence is with the client and new spouse. This means that the former spouse would automatically become the custodial parent regardless of whether he or she is nominated as a guardian. If the former spouse is deceased or found unfit or voluntarily relinquished his or her parental rights, the Court can then look to other guardian nominations. In these circumstances, it is possible that a new spouse might be named guardian, but not because the new spouse has any inherent right to assume custodianship of the children.
3. “What if I have a restraining order against my former spouse?”
The existence of a restraining order or abuse prevention order does not automatically preclude the former spouse from becoming the sole custodial parent after a client’s death. It will depend on several factors, including whether the restraining order or abuse prevention order includes provisions regarding the minor children, and the status of the former spouse’s parental rights.
4. “If my former spouse is the custodian of our minor children, will s/he have access to our children’s money?”
It depends. Without any estate plan in place, if a former spouse becomes the surviving custodian of a client’s minor children and the client did not remarry, there is a good chance the former spouse will have access to the client’s estate assets which are left to the minor children. If this issue is a concern, it is prudent to establish an estate plan that will ensure that the estate assets are used in the desired manner and managed and distributed by a trusted individual. Some clients choose to establish trusts for the benefit of their minor children just for this purpose.
These short responses are meant to provide initial discussion to some of the questions that frequently arise regarding nominating guardians in the context of divorce. Every client’s family situation is unique and warrants individual analysis and planning for that specific estate.