If you are divorced and your ex-spouse retains their parental rights, here is what you need to know when naming a legal guardian for your child in case something happens to both you and your ex-spouse. Let’s frame each option in terms of Good and Best:
Good – If coordinating with your ex-spouse on naming a legal guardian is just not going to happen, you can name a legal guardian for your child in your will without the consent of your ex-spouse.
Assuming your ex-spouse is a fit parent at the time of your death, no matter who you name your ex-spouse will have full custody of your child. However, if your spouse is unfit or pre-deceases you, your guardian designation will control.
Best – The best solution is to get together with your ex-spouse and agree on a legal guardian plan for your child in the event you should both pass before the child reaches the age of 18:
· You name each other as the first legal guardian
· You both name the same person as the alternate legal guardian
The other divorce scenario you should plan for is the one where you have named a married couple as legal guardians and they divorce after your death.
As mentioned in my previous post, this is why I recommend naming just one legal guardian if possible so your child does not end up in the middle of a custody battle after your death.
For blended families, the main concept to understand is this: unless your new spouse’s ex-spouse has surrendered parental rights, you have no legal right to raise your step-children should something happen to your new spouse, and vice versa. If something happens to you, your new spouse has no right to be guardian of your children unless your ex-spouse is unfit or has surrendered parental rights.
However, nothing prevents your new spouse from naming you as legal guardian for his child in case his ex-spouse is deceased or unfit at the time of his death. Likewise, nothing prevents you from naming your new spouse as guardian of your child if your ex-spouse is deceased or unfit at the time of your death.
Just remember that a biological parent whose parental rights are intact at the time of their ex-spouse’s death will have priority over the deceased ex-spouse’s legal guardian designation.