What are the Laws on Child Guardianship When Parents Die?
It can be a difficult thing to consider. Should you and your spouse both die, what happens to your children? Though it is an uncomfortable scenario, you need to begin estate planning now. Don't leave your children's futures up to strangers. If you haven't put together a will, do it. If you already have a will, make sure it is up to date.
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Have a Will
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The best protection for your children if you die is a will naming your choice of guardian. This is the document that the courts will use to decide who should care for your children if both parents die. The assumption is that you as the parent have given this a great deal of consideration and spoken with the potential guardians about your decision. This allows you to do one last parental duty for your children.
Get the Guardian's Approval
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Talk to your chosen guardians about your decision and get their approval. If they don't know and are suddenly told they are now guardians when you die, they can decline. This means the courts make the decision. For this reason, it is good to also name an alternate guardian.
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If You Die Without a Will
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If you die without a will or without naming a guardian, the courts will have to make the decision. This means that someone could be appointed to raise your children who does not necessarily share your values and parenting skills. The courts make their decision based on state law and what is considered best for the children, according to Colorado State University Extension. All this will happen in a short court hearing.
Last Parent Decides
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When one parent dies, the living parent generally maintains custody of the children. If that parent later dies, the courts will consider only the wishes of the last living parent when appointing guardianship, according to the Colorado State University Extension. The final decision is made according to state law, but the states are consistent on this.
When No Will is Needed
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Some states, for instance, Colorado, do not require that a guardian be named in a will. Parents can designate guardians in a separate document that clearly states their intentions. Such a document needs to be witnessed by two people.
Guardian not Conservator
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Your children's guardian will not necessarily control the assets that you leave to your children. You must also designate the guardian as conservator--the person you want to handle your children's assets. If you don't, the court will. This means your children will not get their assets until they turn the age of majority in that state. This is usually considered 21 years old.
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References
- Photo Credit children image by Orlando Florin Rosu from Fotolia.com
