Establishing Child Guardianship: What Happens To Your Children If Both Of You Are Deceased?

by | Feb 9, 2016

kids view of the world with their guardianEstablishing guardianship for your children in the event of your death is a crucial step to take with your spouse or significant other. Death is never an easy scenario to consider, but in the event that both parents of a child die, it’s important to have child guardianship established. This ensures the children are taken care of in a way that honors the parents wishes, and protects the safety and well-being of the child. The best way to do that is to name a guardian in your will.

In a perfect world, this would mean a married couple who have no previous marriages, and no children outside their marriage, would have decided together who was named the guardian of their children. This choice would have been reflected in their will, and their would be no outside parties to contest this decision. However, it’s almost never that cut and dry. Sometimes no will exists, two wills exist and they conflict, or the guardians who have been named are no longer fit to fulfill the guardianship responsibilities.

Naming A Guardian For Your Children

Several factors should be considered when choosing a guardian, including the guardian’s health, age, finances, marital status, and even whether they have children themselves. Failure to consider any one of these factors could result in the selection of a less than ideal candidate for guardian.

Naming a guardian isn’t a permanent choice (as long as you are still alive). Circumstances change and your relationships evolve over time — and that’s perfectly natural. Nobody knows if their friends and loved ones are still going to be around, or be as close as they are now, in 5, 10, or 15 years in the future. Luckily, a child’s guardian can be renamed at any time prior to the parents’ death..

When naming a guardian it’s important to think of the here and now: who is the best guardian for the child now and who could take care of the child in the next few years. The key is keeping your will up to date — it’s important to make sure that if opinions of a named guardian change then they’re reflected immediately in the will.

havingfunNormally, the person you choose to be named as a guardian to your children is informed and has consented to their selection prior to being designated in writing. However, if for some reason they were not included in this process they should be notified immediately once they are named as a guardian in your will. If chosen guardian is reluctant or seems wary about the prospect of raising a child, this is a good indicator that they’re not fit to be a guardian for your child and that you should consider making a different selection.

Setting expectations for the guardian can help ease the tension if they’re uneasy about taking on this responsibility. Indicating what finances will be available to them and how you want the child to be raised are great places to start when beginning a conversation with prospective guardians.

It’s also possible to name two individuals to serve as guardians at different stages in a child’s life. For example, parents might wish for the child to be raised by grandma when the child is pre-adolescent but then by an older sibling when the child turns age 13.  If parents choose this scenario it should be discussed fully with both intended guardians before they’re assigned guardianship in this manner.

What Happens To Children When No Guardian is Named?

In the case where no guardian has been named in the will, it becomes the responsibility of the judicial system to determine the best outcome for the child. Ultimately, anyone can apply for the job and it’s up to the judge to appoint the person. When chance is left up to the court system to determine who takes care of a child, it could be someone that the deceased parents never intended or wanted to be guardian. The law gives certain folks priority over others based on their relationship to the child, but those with priority are not always the most ideal candidates. In a worst-case scenario, the person could be:

  • Abusive.
  • Irresponsible.
  • A money-hungry relative who’s just trying to get control of the child’s inheritance.

The last point can also be prevented by appointing a trustee for the beneficiary’s inheritance (int. link). This trustee would be named in a separate part of the will, and is a common practice that adds an additional level of security to your child’s future.

If it does ever come down to a court battle, it can be very costly. Unfortunately, that cost can be taken right out of the child’s inheritance in order to determine who is going to be the right guardian.  It is possible that both the winner and the loser in a contest over who will be the child’s guardian have their attorney’s fees paid out of the child’s estate.

If there are two wills that conflict then it’s most likely that the courts will rule in favor of the will of the last parent to die. This situation is most common in divorces where the parents disagreed on a single individual and named separate guardians in their wills.

Getting The Guardian You Want

Naming a guardian in your will doesn’t necessarily ensure that the person will receive the guardianship position. Ultimately, the courts have the final decision, but it’s unlikely they’ll argue with who is named in a will. This typically occurs when there is some clear reason not to allow that person to be guardian, such as when the named guardian is:

  • Deceased;
  • Incarcerated; or
  • Otherwise unfit to take care of a child.

One way of helping the judge make this decision, should it come down to it, is to also include a “letter of wishes” or “letter of instruction” which is essentially a list of ways the parent would like the child to be raised. It can be used by the judge to evaluate candidates, but is generally intended for the appointed guardian. Hopefully they have had this conversation with the parents before they were ever listed as the guardian, but either way this letter can serve as a reminder and guide.

It’s also an option to add exclusions to the will, or names of people who can never be a guardian for the child. This is important if there’s a troublesome relative who has ill-intentions, or is clearly unfit to be the guardian.

Hopefully this blog on child guardianship was helpful. We recommend that you consult an experienced guardianship attorney when walking through this decision. At Romano & Sumner, we have a great deal of experience with the guardianship process. If you have any questions, or would like to make an appointment to talk with us, please don’t hesitate to contact us today.


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Children’s view… by Petr Dosek

Having Fun!… by Amina Tagemouati