Naming Guardians In Your Will When You’re Divorced
One of the great aspects of creating a will is that you can name guardians for minor children. Obviously, if you are married, your spouse will have legal custody of your children if you pass away. But what if you are divorced? Does your ex-husband or wife still get custody of your minor children?
In Missouri, the answer is yes. Like it or not, a biological parent of a minor child will obtain custody over minor children if a spouse passes away, regardless of whether the couple is still married when the first spouse dies.
However, it is still important to name an alternate other than your ex-spouse, even if they will still have first rights of custody for your children. This is because your ex-spouse may not be fit to be or want to be a parent to those minor children. In such a case, if you were to die, who you name in your will as the alternate guardian could be incredibly valuable to a court trying to decide guardianship.
Therefore, despite the fact that the other parent of those children has first rights to custody of minor children if you pass away, you want to name an alternate (and probably a second alternate) to serve as guardian just in case.
If you don’t name an alternate and then something happens to you, if your ex-spouse is not fit to be a parent to your children, then anyone can file a petition for guardianship and seek to become the guardians. Yes, anyone, including your ex-mother or father-in-law.
In a guardianship proceeding, the guiding light for the court is what is in the best interests of the children. As your children get close to becoming adults, what the children want becomes more important. The court will put much more credence in the wishes of a 16 minor child than a four year old.
Naming a guardian is not difficult. Our office routinely includes this information as part of putting together simple estate plans for individuals and families. We also counsel our clients to make sure and discuss this with their chosen guardians and to not assume that anyone they name will be able to serve.
If you already have a will, we can draft what is called a standalone guardianship nomination. This is just a document in which your wishes for guardianship are named in a dedicated document rather than as part of your will.