Feb 20, 2011
Dear Liza: What if divorced parents disagree on a guardian? In the case of joint legal custody, with visitation for one parent, are the wishes of the parent with physical custody granted, or does it solely depend on who dies first? Or does it also depend on which state? It is always unfortunate when divorced parents cannot agree on who should take care of minor children. I always encourage my clients to try and find common ground on that, at least. But here's what happens: the first parent to die isn't going to have a say in the matter in most cases. Unless there's some compelling reason not to let the surviving parent take custody (they are in jail; they don't want to take custody; history of abuse), the surviving parent will be in charge of raising the children. That parent's Will, subsequently, will control who is then nominated to be a guardian for minor children. If you have good reason NOT to want a divorced spouse take custody should you die first, you can put that information into your Will (which will be public after your death), or put it in a side letter to be opened only upon your death. If you are seriously concerned about this, please see a good estate planning attorney in your state, so that your estate plan can appropriately document your concern and your reasons for such concern.