As a parent, thinking about the possibility that a day could come when you aren’t able to raise your children can be heart breaking. But building a comprehensive estate plan to protect your minor children is one of the most important things you can do for them. But what do you do if you and your child’s other parent are separated or divorced? Even if the relationship didn’t end harmoniously, for the sake of your children it’s worth setting your differences aside temporarily to discuss these important issues.
Here are five major things to discuss with your ex:
In the eyes of the law, if you pass away, even if you had full custody, guardianship of your child will pass automatically to your child’s other biological parent unless it is determined that the surviving parent is unfit or if the parent previously severed parental rights. Nonetheless, it is still prudent for both of you to nominate a few alternates in the event that both of you are not available. And, it would give both yourself and your child greater security and peace of mind about the future if you and your ex discussed and agree on the same alternates.
Nominating permanent guardians for your child is a great start, but also discuss emergency planning with your ex, especially if you live in different states. Our clients establish Children’s Safeguard Plans that among other things, make sure we have nominated emergency temporary guardians that could care for the children in the event of an emergency and the permanent guardians are not available—friends, neighbors or other family members that could respond within 20-30 minutes and care of the child. If you share custody with your ex, it’s important that both of you have emergency plans in place and that all of your children’s care givers know what to do and who to call in the event of an emergency.
If it’s important to you and your child, be sure to discuss with your ex the importance of extended family involvement in your child’s upbringing. For example, you may wish to discuss the fact that you would still want your parents actively involved in your child’s life even if your ex is guardian. Within your estate plan, you may even provide instructions to your trustee that it is suitable to pay necessary travel expenses and the like to ensure that such visitation is possible.
While you may feel that your ex could and should be your child’s guardian if something happens to you, if you’re like many divorcees, you do not want your ex having control over any financial assets you leave behind for your child. So how can you leave your estate to your child without putting it in the hands of your ex? The key is to put your child’s inheritance in a trust and name a person that you know and trust as trustee to manage the assets on your child’s behalf. Your trust can provide the trustee with instructions on how you want the assets managed, when and how to make distributions to your child’s guardian for the benefit of your child and so on. Note that your trustee and guardian will have to communicate regularly and work together frequently, so if you an your ex can both agree on a trustee that you’re both trust and are comfortable with it will make everyone’s lives easier.
It’s common upon remarriage to commingle assets and finances. And if you don’t properly plan for your child in your estate plan, it’s likely that if you die, all of your assets will end up going to your new spouse—effectively disinheriting your child. If you or your ex are contemplating remarriage, it’s important to talk to your attorney and make sure there is a plan in place to ensure that your children will be provided for.